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Full text of "North Carolina Register v.8 no. 10 (8/16/1993)"

>R/ KF Kl/74-34/' A2/N67 



The 



RECEIVED 



AUG 19 1993 
LAW LIBRARr 



NORTH CAROLINA 

REGISTER 



IN TfflS ISSUE 



I 



TJiri 

TTJOWl 



EXECXrnVE ORDERS 

IN ADDITION 

EUNR Environmental Management 
Final Decision Letters 

PROPOSED RULES 
Commerce 

Electrolysis Examiners 

Environment, Health, and Natural Resources 
Human Resources 
Practicing Psychologists 
Transportation 



LIST OF RULES CODIFIED 



RRC OBJECTIONS 



RULES INVALIDATED BY JUDICIAL DECISION 



CONTESTED CASE DECISIONS 



ISSUE DATE: August 16, 1993 
Volume 8 • Issue 10 • P^ges 793 - 875 



TNFORMATTON ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 



TEMPORARY RULES 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 2761 1-7447. 



Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the fmdings do not meet the criteria, 
the rule is returned to the agency. Tfie agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Stamtes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments: the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 busmcss 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (52.50) for 10 pages or less, 
plus fifteen cents (80.15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION 


CONTACT 


Office 


of 


Administrativ 


e Hearings, 


ATTN: Ru 


es 


Division, 


P.O. 


Drawer 27447, 


Raleigh, North Carolina 


27611-7447, 


(919) 


733-2678. 













NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director of APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



ISSUE CONTENTS 



I. EXECUTIVE ORDERS 

Executive Orders 19-20 793 

II. IN ADDITION 

EHNR Environmental Management 797 
Voting Rights Act 795 

III. PROPOSED RULES 
Commerce 

Banking Commission 798 

Cemetery Commission 810 

State Ports Authority 811 

Environment, Health, and 
Natural Resources 

Mining: Mineral Resources .... 829 
Wildlife Resources 831 

Human Resources 
Aging, Division of 815 

Licensing Boards 

Electrolysis Examiners 841 

Practicing Psychologists 844 

Transportation 
Highways, Division of 836 

IV. LIST OF RULES CODIFIED ... 845 

V. RRC OBJECTIONS 851 

VI. RULES INVALIDATED BY 

JUDICIAL DECISION 855 

VII. CONTESTED CASE DECISIONS 

Index to AU Decisions 856 

Text of Selected Decisions 

93 CPS0160 862 

93 EHR0181 870 

Vin. CUMULATIVE INDEX 873 



NORTH CAROLINA REGISTER 

Publication Schedule 

(July 1993 - May 1994) 



Volume 
and 
Issue 

Number 


Issue 
Date 


Last Day 

for 

Filing 


Last Day 
for Elec- 
tronic 
Filmg 


Earliest 

Date for 

Public 

Heanng 

15 days 

from 

notice 


* End of 

Required 

Comment 

Period 

30 days 

from 

notice 


Last Day 

to Submit 

to RRC 


** Earliest 

Effective 

Date 


8:7 


07/01/93 


06/10/93 


06/17/93 


07/16/93 


08/02/93 


08/20/93 


10/01/93 


8:S 


07/15/93 


06/23/93 


06/30/93 


07/30/93 


08/16/93 


08/20/93 


10/01/93 


8:9 


08/02/93 


07/12/93 


07/19/93 


08/17/93 


09/01/93 


09/20/93 


11/01/93 


8:10 


08/16/93 


07/26/93 


08/02/93 


08/31/93 


09/15/93 


09/20/93 


11/01/93 


8:1! 


09/01/93 


08/11/93 


08/18/93 


09/16/93 


10/01/93 


10/20/93 


12/01/93 


8:12 


09/15/93 


08/24/93 


08/31/93 


09/30/93 


10/15/93 


10/20/93 


12/01/93 


8:13 


10/01/93 


09/10/93 


09/17/93 


10/18/93 


11/01/93 


11/22/93 


01/04/94 


8:14 


10/15/93 


09/24/93 


10/01/93 


11/01/93 


11/15/93 


11/22/93 


01/04/94 


8:15 


11/01/93 


10/11/93 


10/18/93 


11/16/93 


12/01/93 


12/20/93 


02/01/94 


8:16 


11/15/93 


10/22/93 


10/29/93 


11/30/93 


12/15/93 


12/20/93 


02/01/94 


8:17 


12/01/93 


11/05/93 


11/15/93 


12/16/93 


01/03/94 


01/20/94 


03/01/94 


8:18 


12/15/93 


11/24/93 


12/01/93 


12/30/93 


01/14/94 


01/20/94 


03/01/94 


8:19 


01/03/94 


12/08/93 


12/15/93 


01/18/94 


02/02/94 


02/21/94 


04/01/94 


8:20 


01/14/94 


12/21/93 


12/30/93 


01/31/94 


02/14/94 


02/21/94 


04/01/94 


8:21 


02/01/94 


01/10/94 


01/18/94 


02/16/94 


03/03/94 


03/21/94 


05/01/94 


8:22 


02/15/94 


01/25/94 


02/10/94 


03/02/94 


03/17/94 


03/21/94 


05/01/94 


8:23 


03/01/94 


02/08/94 


02/15/94 


03/16/94 


03/31/94 


04/20/94 


06/01/94 


8:24 


03/15/94 


02/22/94 


03/10/94 


03/30/94 


04/14/94 


04/20/94 


06/01/94 


9:1 


04/04/94 


03/11/94 


03/18/94 


04/19/94 


05/04/94 


05/20/94 


07/01/94 


9:2 


04/15/94 


03/24/94 


03/31/94 


05/02/94 


05/16/94 


05/20/94 


07/01/94 


9:3 


05/02/94 


04/11/94 


04/18/94 


05/17/94 


06/01/94 


06/20/94 


08/01/94 


9:4 


05/16/94 


04/25/94 


05/02/94 


05/31/94 


06/15/94 


06/20/94 


08/01/94 



Note: Time is computed according to the Rules of Civil Procedure, Rule 6. 

* An agency must accept comments for at least 30 days after the proposed text is published or until the date of any 
public hearing, whichever is longer. See G.S. 150B-21.2(f] for adoption procedures. 

** The "Earliest Effective Date " is computed assuming that the agency follows the publication schedule above, that the 
Rules Review Commission approves the nde at the ne.xt calendar month meeting after submission, and that RRC delivers 
the rule to the Codifier (f Rules five (5) business days before the 1st business dax of the ne.xt calendar month. 



Revised 07/93 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NUMBER 19 

CENTER FOR THE PREVENTION 

OF SCHOOL VIOLENCE 

By the Power vested in me as Governor by the 
laws and Constitution of North Carolina, IT IS 
ORDERED: 



day of June, 1993. 

EXECUTIVE ORDER NUMBER 20 
TO DESIGNATE 1994 AS THE YEAR OF 

THE COAST AND TO CREATE A 

COASTAL FUTURES COMMITTEE ON 

COASTAL AREA MANAGEMENT 



Section 1. Establishment. 

There is hereby established a Center for the 
Prevention of School Violence ("Center") within 
the Governor's Crime Commission Division of the 
Department of Crime Control and Public Safety 
("DCCPS"). 

Section 2. Duties. 

A. To work with representatives from State 
agencies, local schools, law enforcement, 
and the juvenile justice system to identify 
problems and develop recommendations 
and procedures to stem the tide of school 
violence. 

B. To serve as a clearinghouse of informa- 
tion concerning school violence, possible 
including regional workshops on appro- 
priate topics. 

C. To facilitate training, coordinating and 
focusing of resources at the local level. 

D. To advise the Secretary of DCCPS con- 
cerning grant awards to reduce school 
violence, which are administered by the 
Governor's Crime Commission Division. 

Section 3. Administration. 

The Center is authorized to accept funds from 
sources other than appropriations by the North 
Carolina General Assembly. Such funds will be 
administered by the DCCPS. 

Section 4. Board of Directors. 

The following ex officio members of the 
Governor's Crime Commission shall serve as the 
Center's Board of Directors: 

A) the Secretary of Crime Control and Pub- 
lic Safety; 

B) the Attorney General; 

C) the Superintendent of Public Instruction; 

D) the Secretary of the Department of Hu- 
man Resources; and, 

E) the Juvenile Services Administrator of the 
Administrative Office of the Courts. 

This Order is effective immediately. 

Done in Raleigh, North Carolina, this the 30th 



WHEREAS, North Carolina's coastal ocean, 
lands, and waters are among the state's most 
valuable and productive resources; and 

WHEREAS, the coastal area is a vital part of 
North Carolina's history, culture and economy; 
and 

WHEREAS, its beauty and traditions draw 
people to visit and live in the coastal area; and 

WHEREAS, the North Carolina Coastal Area 
Management Act of 1974 ("CAMA") was enacted 
because of an immediate and pressing need to 
establish a comprehensive plan for the protection, 
preservation, orderly development and manage- 
ment of the twenty coastal counties in North 
Carolina; and 

WHEREAS, the Act was the nation's pioneering 
effort to establish a planning and regulatory pro- 
gram for managing coastal resources: and 

WHEREAS, during the 1980's, the population of 
the coastal zone grew at a rate of almost twice that 
of the entire state; and 

WHEREAS, the coastal area is experiencing 
greater pressures and more conflicting needs than 
ever before; and 

WHEREAS, great care must be taken to continue 
to protect our estuaries, barrier islands, marshes, 
and maritime forests; and 

WHEREAS, the year 1994 is the 20th anniversa- 
ry of the enactment of CAMA, it is a fitting time 
to assess the our management of the coastal area, 
celebrate our coastal resources and chart a clear 
course of action for our coastal future. 

NOW THEREFORE, by the power vested in me 
as Governor by the Constitution and laws of North 
Carolina, IT IS ORDERED: 

Section 1. Year of the Coast. 

Nineteen ninety-four is proclaimed the Year of 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



793 



EXECUTIVE ORDERS 



the Coast. 

Section 2. Establishment. 

The Coastal Futures Committee ("Committee") is 
hereby established. 

Section 3. Membership and Terms. 

The Governor shall appoint 15 persons to serve 
on the Committee and shall designate one of its 
members to serve as Chair and one to serve as 
Vice Chair. The Committee shall meet regularly 
to carry out its duties at the call of the Chair. 

Section 4. Powers and Duties of the 
Committee. 

A. To study the North Carolina coastal manage- 
ment program and similar programs in other states 
as it deems appropriate. 

B. To identify major coastal management issues 
to be analyzed in depth. 

C. To develop a set of recommendations to 
effectuate the purposes of this Order through such 
activities as meetings, fact-finding tours, educa- 
tional events, and in-depth reports. 



Committee, and coordinate its activities. The 
Secretary of the Department of Environment, 
Health, and Natural Resources ("DEHNR") shall 
maintain the official minutes and other records of 
the Committee, and shall work in partnership with 
universities and the private nonprofit sector to 
furnish staff assistance, educational and research 
materials, and administrative support which the 
Committee may require. 

The Committee is authorized to accept donations 
of in-kind services and funds, subject to the Exec- 
utive Budget Act. Donations from government 
agencies shall be administered by DEHNR. The 
North Carolina Coastal Federation, a 501(c)(3) 
nonprofit organization, has agreed to raise and 
administer donations from other than government 
entities. Members of the Committee shall receive 
necessary travel and subsistence expenses pursuant 
to General Statute 138-5. 

The Committee shall be considered a "public 
body" and its meetings shall be open to the public 
pursuant to General Statutes Chapter 143, Article 
33C. The Committee, for administrative purposes 
only, shall be located in DEHNR. 



D. To submit a final report to the Governor, 
Coastal Resources Commission, and the Coastal 
Resources Advisory Council by September 1 , 1994 
which will include an assessment of appropriate 
future directions or options for the coastal manage- 
ment program, including recommendations for 
administrative and lesislative action. 



This Executive Order shall become effective 
immediately. The Committee shall cease to exist 
once the final report is issued. 

Signed in Raleigh, North Carolina, this 15th day 
of July, 1993. 



E. To arrange for such celebrations of the 20th 
anniversary of CAMA as it deems appropriate, 
including such activities as a national conference 
on coastal management. 

F. To focus media and public attention on the 
results of CAMA and the value of citizen involve- 
ment in coastal planning. 

G. To coordinate its efforts with local officials 
and events and to help promote coastal events. 

H. To perform and exercise such other duties 
and powers as may be necessary to accomplish the 
purposes of this Executive Order. 

Section 5. Administration. 

The Governor shall designate a state employee to 
serve as Executive Secretary, provide professional 
assistance and background information to the 



794 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



IN ADDITION 



1 his Section contains public notices that are required to be published in the Register or have been 
approved by the Codifier of Rules for publication. 



U.S. Department of Justice 

Civil Rights Division 

JPT:GLH:JBG:tib Voting Section 

DJ 166-012-3 P.O. Box 66128 

93-1103 Washington, D.C. 20035-6128 

93-1821 

July 19, 1993 

Robert C. Cogswell, Jr., Esq. 

City Attorney 

P. O. Box 1513 

Fayetteville, North Carolina 28302-1513 

Dear Mr. Cogswell: 

This refers to nineteen annexations (Ordinance Nos. 91-11-348 through 93-8-366) and the 
designations of the annexed areas to election districts for the City of Fayetteville, in Cumberland County, 
North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act of 1965, 
as amended, 42 U.S.C. 1973c. We received your last submittal of information in response to our request 
for additional information concerning the city's 1991 annexation on May 26, 1993. Your related submission 
of subsequent annexations was received on May 19, 1993; supplemental information was received on May 
26, July 13, 16, and 19, 1993. 

The Attorney General does not interpose any objection to the specified changes. However, we note 
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent 
litigation to enjoin the enforcement of the changes. See the Procedures for the Administration of Section 5 
(28 C.F.R. 51.41). 

Your submission indicates that the city has adopted a plan for a multi-phase involuntary annexation 
program for which no final annexation ordinances have been adopted. We note that the annexations and any 
other changes affecting voting will be subject to Section 5 review. See also 28 C.F.R. 51.15 and 51.22. 



Sincerely, 

James P. Turner 

Acting Assistant Attorney General 

Civil Rights Division 



By: 



Steven H. Rosenbaum 
Chief, Voting Section 



8:10 NORTH CAROLINA REGISTER August 16, 1993 795 



IN ADDITION 



JPT:SHR:GS:EMP:mrj 
DJ 166-012-3 
93-1929 



U.S. Department of Justice 

Civil Rights Division 

Voting Section 

P.O. Box 66128 

Washington, D.C. 20035-6128 



July 23, 1993 

Michael Crowell, Esq. 
Tharrington, Smith & Hargrove 
P. O. Box 1151 
Raleigh, North Carolina 27602-1151 

Dear Mr. Crowell: 

This refers to Chapter 55 (1993), which consolidates the school districts of the City of Washington 
and Beaufort County, and provides for a nine-member board elected by the nonpartisan plurality method from 
single-member districts for four-year, staggered terms, the districting plan, the general election date, an 
implementation schedule, and procedures for filling vacancies for the Beaufort County School District in 
Beaufort County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting 
Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your initial submission on May 28, 1993; 
supplemental information was received on July 3, 1993. 

The Attorney General does not interpose any objection to the specified changes. However, we note 
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent 
litigation to enjoin the enforcement of the changes. In addition, as authorized by Section 5, we reserve the 
right to reexamine this submission if additional information that would otherwise require an objection comes 
to our attention during the remainder of the sixty-day review period. See the Procedures for the 
Administration of Section 5 (28 C.F.R. 51.41 and 51.43). 



Sincerely, 

James P. Turner 

Acting Assistant Attorney General 

Civil Rights Di\ision 



By: 



Steven H. Rosenbaum 
Chief, Voting Section 



796 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



IN ADDITION 



f 



TITLE 15A - DEPARTMENT OF ENVIRONMENT, HEALTH, AND 
NATURAL RESOURCES 

ENVIRONMENTAL MANAGEMENT COMMISSION 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2B - SURFACE WATER STANDARDS: MONITORING 

SECTION .0300 - ASSIGNMENT OF STREAM CLASSIFICATIONS 

The Division of Environmental Management will accept additional comments on the proposed 
reclassification of Sandy Run Creek and tributaries in Cleveland and Rutherford Counties until September 
30, 1993. The initial notification of the proposed rule amendment 15A NCAC 2B .0306 (Broad River Basin) 
was published in Volume 7, Issue 24, pages 2667-2668 of the North CkiroUna Register on March 15, 1993. 
Written comments concerning the proposed rule amendment may be sent to: 

Steve Zoufaly 

EHNR DEM 

P.O. Box 29535 

Raleigh, NC 27626-0535 



# 



# 



8:10 NORTH CAROLINA REGISTER August 16, 1993 797 



PROPOSED RULES 



TITLE 4 - DEPARTMENT OF COMMERCE 

I\l otice is hereby given in accordance with G.S. 
150B-2J.2 that the North dirolina Banking Com- 
mission intends to adopt rules cited as 4 NCA C 21 
.0101, .0201 - .0204, .0301 - .0306. .0401 - 
.0406. .0501 - .0503, .0601 - .0605, .0701 - 
.0706. 

1 he proposed effective date of this action is 
November 1. 1993. 

1 he public hearing will he ctmducted at 8:30 
a.m. on September 1 , 1993 at the Dohbs Building. 
430 N. Salisbury Street. Suite 6155. Raleigh. N. C. 
27626. 

Jxeason for Proposed Action: To effectuate the 
purpose of the Registration Requirements Act for 
Certain Makers of Mortgages and Deeds of Trust 
on Residential Real Property, codified at N. C. 
General Statute 53-233 ef seci. , to provide for the 
protection of the borrowing public and to instruct 
mortgage lenders in interpreting .said Act. 

(comment Procedures: Comments may be made 
orally or in writing and must be submitted no later 
than September 16, 1993 at 5:30 p.m. Conunents 
should be directed to: T. Mercedes Oglukian, 
Special Counsel, 430 N. Salisbury Street. P.O. 
Bo.x 29512. Raleigh, NC 27625-0512, Tel. (919) 
733-3016, Fax (919) 733-6919. 

CHAPTER 3 - BANKING COMMISSION 

SUBCHAPTER 31 - MORTGAGE 
BANKER/ BROKER 

SECTION .0100 - ADMINISTRATIVE 

.0101 DEFINITIONS; FILINGS 

(a) As used in these Rules, unless the context 
clearly requires otherwise: 

UJ Terms defined in G.S. 53-234 shall 
have the same meaning as set forth 
therein; 
(2) "Accounting period" shall mean either 
a period of J_2 months (or less in the 
first year of operations) ending Decem- 
ber 31 or a fiscal year of not more than 
12 months (or less in the first year of 



13} 



(4) 



15] 

16] 

i7j 



(8) 



operations) ending on the last day of 
any month except December; 
"Advertisement" shall mean material 
used or intended to be used to induce 
the public to apply for a mortgage loan. 
The term shall include any printed or 
published material, or descriptive litera- 
ture concerning a mortgage loan to be 
solicited, processed, negotiated or 
funded by a registrant whether dissemi- 
nated by direct mail, newspaper, maga- 
zine, radio or television broadcast, 
billboard or similar display. The term 
advertisement shall not include any 
disclosures, program descriptions, or 
other materials prepared or authorized 
by any state or federal government 
agency, nor shall such term include any 
material or communication which has 
been excluded from any definition of 
advertisement for purposes of any 
regulation of the Board of Governors of 
the Federal Reserve System regulating 
consumer credit disclosures; 
"Application fee" shall mean any fee 
accepted by a registrant in connection 
with an application for a mortgage loan 
including any charge for soliciting, 
processing, placing or negotiating a 
mortgage loan. The term does not 
include a commitment fee, lock-in fee, 
or third-party fee as such terms are 
defined in Subparagraphs (a)( 12), (19) 
and [32] of this Rule; 
"Application for a mortgage loan" shall 
have the same meaning as "Application 
for a federally-related mortgage loan" 
in Regulation X; 

"Bonus" shall mean money, or an 
equivalent, given jn addition to usual 
compensation; 

"Branch manager" shall mean an em- 
ployee of a registrant who i^ in charge 
of, and responsible for, the operations 
of a registrant's branch office located in 
this State; 
"Branch office" shall mean any loca- 



m 



tion, including a personal residence, but 
not the principal place of business, 
where the registrant holds itself out to 
the public as engaging fn business as a 
mortgage banker or mortgage broker; 
"Business day" shall have the same 
meaning as "business day" is defined in 
Regulation X; 



( 



798 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



PROPOSED RULES 



# 



(10) 

Oil 

(12) 



'Commitment" shall mean an offer to 



(13) 



(14) 



i 



(15) 

(16) 
(17) 
(18) 



(19) 



f 



(20) 
(21) 



make a mortgage loan, signed, autho- 
rized or made by a mortgage banker; 
"Commitment agreement" shall mean a 
commitment accepted by an applicant 
for a mortgage loan; 
"Commitment fee" shall mean a fee, 
exclusive of third-party charges, im- 
posed by a mortgage banker as consid- 
eration for binding it to make a mort- 
gage loan; 

"Controlling person" shall mean any 
person, as defined herein, who owns or 
holds with the power to vote 10% or 
more of the equity securities of the 
registrant, or who has the power to 
direct the management and policy of the 
registrant; 

"Employee" shall mean any individual 
performing a service for a registrant for 
whom the registrant would be liable for 
withholding taxes pursuant to Title 26 
of the United States Code; 
"First-tier subsidiary" shall mean a 
corporation of which 100% of the stock 
is directly owned by the parent compa- 

mi 

"Good faith estimate" shall have the 
same meaning as "good faith estimate" 
is defined in Regulation X; 
"HUD" shall mean the United States 
Department of Housing and Urban 
Development; 

"Lock-in agreement" shall mean an 
agreement between a mortgage banker 
and an a pplicant for a mortgage loan 
which, subject to the terms set forth 
therein, obligates the mortgage banker 
to make a mortgage loan at a specified 
rate and a specific number of points, if 
any; 

"Lock-in fee" shall mean points or 
other fees or discounts accepted by a 
mortgage broker for transmittal to a 
mortgage banker or exempt organiza- 
tion or by a mortgage banker as consid- 
eration for the making of a lock-in 
agreement; 

"Person" shall mean an individual, 
corporation, partnership, trust, associa- 
tion or other entity; 
"Point" shall mean an origination fee or 
other fee or discount calculated as 1 % 
of the principal amount of the loan or 
1 % of the amount financed, however 



(22) 



(23) 



(24) 



(25) 



(26) 



(27) 
(28) 



(29) 



30) 



such point may be denominated by the 
registrant. The term point shall in- 
clude, but not be limited to, percentage 
based fees denominated as application 
fees, mortgage brokerage fees, origina- 
tion fees, or warehousing fees; 
"Premium" shall be synonymous with 
"bonus" as defined herein and shall 
mean money, or an equivalent, given in 
addition to usual compensation; 
"Premium pricing" shall mean a loan 
delivered to a lender at an adjusted 
interest rate that will meet the lender's 
yield requirements and will enable the 
broker to receive as its fee the differ- 
ence between the points delivered to the 
lender and the fee allotted to the cus- 
tomer; 



"Prevailing rate" shall mean an interest 
rate on a mortgage loan that is set by a 
mortgage banker after the issuance of a 
commitment but prior to or on the 
closing date. Such rate may be fixed or 
variable; 



"Principal officer" shall have the same 
meaning as "executive officer" as de- 
fined in Regulation O of the Board of 
Governors of the Federal Reserve 
System, codified at 12 CFR Part 215, 
et_ seq. ; 

"Registration of Mortgage Bankers and 
Brokers Act" shall mean the Registra- 
tion Requirements Act for Certain 
Makers of Mortgages and Deeds of 
Trust on Residential Real Property, 
codified at Chapter 53. Article 19 of 
the General Statutes of North Carolina 
(G.S. 53-233. et seq.): 
"Regulation X" shall mean Regulation 
X as promulgated by HUD and codified 
at 24 CFR Part 3500. et seq. ; 
"Regulation Z" shall mean Regulation 
Z as promulgated by the Board of 
Governors of the Federal Reserve 
System and codified at \2 CFR Part 
226. et seq. ; 

"RESPA" shall mean the Real Estate 
Settlement Procedures Act, codified at 
\2 use 2601. et seq. ; 
"Tablefunding" shall mean a transaction 
in which a registrant closes a loan [n its 
own name with funds provided by 
others and such loan is assigned within 
24 hours of the funding of the loan to 
the mortgage lender providing the 



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799 



PROPOSED RULES 



funding: 

(31) "Settlement cost" shall have the same 
meaning as "settlement cost" is defined 
in Regulation X; 

(32) "Third-party fee" shall mean the fees or 
charges paid by the applicant for a 
mortgage loan to the registrant for 
transmittal to third persons who provide 
services in connection with the mort- 
gage loan, including, but not limited to, 
recording taxes and fees, reconveyance 
or releasing fees, appraisal fees, credit 
report fees, attorney's fees, fees for 
title reports and title searches, title 
insurance premiums, surveys and simi- 
lar charges; 

(33) "Truth Jn Lending Act" shall mean 
Title 1 of the Consumer Credit Protec- 
tion Act, as amended, and codified at 
15 use 1601, cr sc^ 

(h) For the purposes of this Subchapter, unless 
the context clearly requires otherwise, the terms 
mortgage banker and mortgage broker shall mean 
a registrant. 

(c) Any application for registration or any 
report, annual statement, amendment to applica- 
tion, notice or other document which is required 
by law or rule to be filed with the Commissioner 
shall be addressed as follows: 

Commissioner of Banks 

Post Office Box 29512 

Raleigh, North Carolina 27626-0512 

Statutory Authority G.S. 53-233: 53-234: 53-241. 

SECTION .0200 - MINIMUM NET WORTH, 

LIQUIDITY AND BONDING 

REQUIREMENTS 

.0201 MIMMUM NET WORTH 

REQUIREMENT FOR MORTGAGE 
BANKERS 

(a) A mortgage banker shall have at aM times a 
net worth of at least two hundred and fifty thou- 



sand dollars ($250.000). 

(b) A mortgage banker that engages in table- 
funding, but does not engage in any other mort- 
gage banking activity, shall have at aU times the 
same net worth as required for mortgage brokers 
pursuant to Rule .0202(a) of this Section. 

(c) Mortgage bankers which are approved for 
registration by the Commissioner on or after the 
effective date of this Rule shall have, at a mini- 
mum, the net worth set forth herein upon approv- 
al. Mortgage bankers which were approved for 



registration by the Commissioner before the 
effective date of this Rule shall have until January 
9^ 1995 to comply with this Rule. 

(d) Mortgage bankers which were approved for 
registration by the Commissioner before the 
effective date of this Rule shall submit to the 
Commissioner an audited Statement of Financial 
Condition (balance sheet) on or before March 31, 
1995 which shall verify their financial condition as 
of the most recently completed accounting period. 

Statutory Authority G.S. 5 3 -236(h): 53-241. 

.0202 MINIMUM NET WORTH 

REQUIREMENT FOR MORTGAGE 
BROKERS 

(a) A mortgage broker shall have at all times a 
net worth of at least twenty-five thousand dollars 
($25,000). However, mortgage brokers which 
must have a greater net worth to participate in 
mortgage lending programs sponsored by the 
federal government or any agency thereof shall at 
all times maintain the net worth required by the 
federal government or its agencies. 

(b) Mortgage brokers which are approved for 
registration by the Commissioner on or after the 
effective date of this Rule shall have, at a mini- 
mum, the net worth set forth herein upon approv- 
al. Mortgage brokers which were approved for 
registration by the Commissioner before the 
effective date of this Rule shall have until January 
9^ 1995 to comply with this Rule. 

(c) Mortgage brokers which were approved for 
registration by the Commissioner before the 
effective date of this Rule shall submit to the 
Commissioner an audited Statement of Financial 



Condition (balance sheet) on or before March 31 , 
1995 which shall verify their financial condition as 
of the most recently completed accounting period. 

Statutory- Authority G.S. 53-236(h): 53-241. 

.0203 LIQUIDITY OF MORTGAGE 
BANKERS AND BROKERS 

(a) All mortgage bankers and brokers shall 
maintain liquid assets consisting of cash or its 
equivalent acceptable to the Commissioner in the 
amount of 20% of their net worth, up to a maxi- 
mum liquidity of one hundred thousand dollars 
($100.000). 

(b) All mortgage bankers and brokers which are 
approved for registration by the Commissioner on 
or after the effective date of this Rule shall meet 
the requirements of this Rule upon approval. 
Mortgage bankers and brokers which were ap- 



800 



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August 16, 1993 



PROPOSED RULES 



proved for registration by the Commissioner 
before the effective date of this Rule shall have 
until January 9^ 1995 to comply with this Rule. 

Statutory Authority G.S. 53-236(b); 53-241. 



.0204 SURETY BOND 

(a) All mortgage bankers and brokers shall post 
a surety bond in the amount of twenty-five thou- 
sand dollars ($25.000) with the Commissioner 
which shall run to the benefit of the Commission- 
er. The bond shall be executed by a company 
authorized to do business in North Carolina and 
shall be conditioned upon the obligor's compliance 
with the provisions of the Registration of Mortgage 
Bankers and Brokers Act and all Rules adopted 
thereunder. 

(b) Mortgage bankers and brokers which are 
approved for registration by the Commissioner on 
or after the effective date of this Rule shall meet 
the requirements of this Rule upon a pproval. 
Mortgage bankers and brokers which were ap- 
proved for registration by the Commissioner 
before the effective date of this Rule shall have 
until January 9^ 1995 to comply with this Rule. 

Statutory Authority G.S. 53-236(h); 53-241. 

SECTION .0300 - REGISTRATION OF 

MORTGAGE BANKERS AND MORTGAGE 

BROKERS 

. 030 1 APPLICATION FOR REGISTRATION 
AS A MORTGAGE BANKER OR 
BROKER 

(a) Any person who would like to engage in 
business as a mortgage banker or mortgage broker 
pursuant to the Registration of Mortgage Bankers 
and Brokers Act shall first be registered with the 
Commissioner. An application shall be obtained 
from the Commissioner and shall be filed pursuant 
to Rule .0101(c) of this Subchapter. 

(b) The application for registration as a mort- 
gage banker or mortgage broker shall include the 
following: 

(1) An audited Statement of Financial 
Condition (balance sheet) of the appli- 
cant for the previous accounting period 
reflecting a minimum net worth and 
liquidity as required by Section .0200 
of this Subchapter; 

(2) A surety bond as set forth in Rule 
.0204 of this Subchapter; 

(3) Copies of the following documents, 
where applicable: 



(A) The applicant's Articles of Incorpora- 
tion, or General or Limited Partner- 
ship Agreement. 

(B) A Certificate of Existence or Certifi- 
cate of Good Standing, not more than 
90 days old, from the applicant's state 
of incorporation, 

(C) A Certificate of Authority to do busi- 
ness in this State. 

(D) A copy of the applicant's Certificate 
of Assumed Name; 

(4) Disclosure of any criminal proceedings 
pending against or criminal convictions 
entered against the applicant, its part- 
ners, directors, principal officers or 
controlling persons; 

(5) Disclosure of any civil proceedings 
pending against or civil judgments 
entered against the applicant, its part- 
ners, directors, principal officers or 
controlling persons which involve fraud 
or dishonesty; 

(6) Disclosure of any civil judgments en- 
tered against the applicant, its partners, 
directors, principal officers or control- 
ling persons during the past 10 years 
which have remained partially or whol- 
ly unpaid; 

(7) Disclosure of the following proceedings 
involving the applicant: bankruptcy, 
assignment for the benefit of creditors, 
receivership, conservatorship or similar 
proceeding; 

(8) Disclosure of enforcement proceedings 
by the Federal Housing Administration. 
Veterans Administration. Federal Na- 
tional Mortgage Association, or any 
other federal or state agency against the 
applicant, its partners, directors, princi- 
pal officers or controlling persons 
which involve licensure or business 
activities as a mortgage broker or mort- 
gage banker; 

(9} A description of the applicant's busi- 
ness operations and organizational 
structure; 

(10) The addresses at which the applicant 
intends to engage in business as a mort- 
gage banker or broker, including 
branch offices and the name of the 
branch manager at each branch office; 

(1 1) A description of the business experi- 
ence, current business activities and 
education of the applicant, its partners, 
directors, principal officers and control- 



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801 



PROPOSED RULES 



ling persons; 

(12) Evidence of compliance with the expe- 
rience requirements set forth in Rules 
■ 0303 and .0304 of this Section; 

(13) Tliree business references, including 
one bank reference; 

( 14) Where applicable, the names and busi- 
ness addresses of all lenders whom the 
applicant is authorized to represent and 
whom the applicant may bind to loan 
terms. A copy of the agency agreement 
for each such lender shall be provided. 

(c) The following fees shall be submitted with 
the application for registration as a mortgage 
banker or mortgage broker: 

( 1 ) A nonrefundable application fee made 
payable to the Commissioner in the 
amount set forth in G.S. 53-236(b); 
An annual registration fee made payable 
to the Commissioner in the amount set 
forth in G.S. 53-242. 



i2i 



(d) The application shall be in writing and shall 
be verified by the oath of the applicant. 

(e) A person who wishes to engage in business 
as both a mortgage broker and a mortgage banker 
shall so state on the application and shall meet all 
standards for registration as both a mortgage 
banker and mortgage broker. Such applicant shall 
submit with its application only one nonrefundable 
fee as set forth in G.S. 53-236(b) and two annual 
registration fees as set forth in G.S. 53-242. 

(f) In addition to the documents and information 
described in Paragraph (b) of this Rule, the Com- 
missioner may require additional information as 
necessan,' to make the findings required by G.S. 
53-236 and G.S. 53-237. 

(g) In the event of denial of the application, the 
Commissioner shall refund in full any annual 
registration fees paid pursuant to G.S. 53-242. 

(h) Incomplete application files may be closed 
and deemed denied without prejudice when the 
applicant has not submitted information requested 
by the Commissioner within 30 days of request. 

Smtuton- Aurhorin- G.S. 53-235: 53-236: 53- 
237(a):' 53-241: 53-242. 

.0302 EXEMPT PERSONS OR 
ORGANIZATIONS 

(a) For the purposes of G.S. 53-234(6)(a), the 
following shall apply: 

( 1 ) "Regulatory body or agency of the 
United States" shall mean the Federal 
Deposit Insurance Corporation, the 
Office of the Comptroller of the Cur- 



rency, the Federal Reserve Board or the 
Office of Thrift Supervision, or their 
successor agencies; 

(2) Only a first-tier subsidiary of a lender 
shall be deemed to be a subsidiary 
which is subject to the general supervi- 
sion or regulation of the lender; 

(3) Only a first-tier subsidiary of a holding 
company of which a lender is also a 
first-tier subsidiary shall be deemed to 
be an affiliate which [s subject to the 
general supervision or regulation of the 
lender. 

(b) For the purposes of G.S. 53-234(6)(b|. the 
receipt of a computer loan origination fee pursuant 
to Regulation X shall be deemed to be compensa- 
tion or income in connection with the placement of 
a mortgage loan. A licensed real estate agent or 
broker who wishes to receive such fees shall first 
be registered as a mortgage broker with the Com- 
missioner. 

Statutory Authority G.S. 53-234(6)(a): 53-241. 

.0303 EXPERIENCE REQUIREMENTS FOR 
MORTGAGE BANTCERS 

(a) A mortgage banker shall, at aU times, com- 
ply with the follov,'ing experience requirements: 

( 1 ) If the mortgage banker is a sole propri- 
etor, he shall have at least three years 
of experience m residential mortgage 
lending; 

(2) If the mortgage banker is a general or 
limited partnership, at least one of its 
general partners shall ha\e the experi- 
ence set forth in Subparagraph (a)(1) of 
this Rule; 

(3) If the mortgage banker is a corporation. 
at least one of its principal officers shall 
have the experience set forth in Sub- 
paragraph (a)(l ) of this Rule. 

(b) Mortgage bankers which are registered with 
the Commissioner on the date this Rule becomes 
effective shall have until Januan,' _L 1997 to meet 
the requirements of this Rule. 

Statutory Authority G. S. 53-236(h): 53-237(a): 53- 
241. 

.0304 EXPERIENCE REQUIREMENTS FOR 
MORTGAGE BROKERS 

(a) A mortgage broker shall, at aU times, com- 
ply with the following experience requirements: 
( 1) If the mortgage broker is a sole propri- 
etor, he must have at least three years 



802 



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August 16, 1993 



PROPOSED RULES 



f 



of experience [n brokering residential 
mortgage loans or residential mortgage 
lending; 

(2) If the mortgage broker is a general or 
limited partnership, at least one of its 
general partners shall have the experi- 
ence set forth in Subparagraph (a)(1) of 
this Rule; 

(3) If the mortgage broker is a corporation, 
at least one of its principal officers shall 
have the experience set forth in Sub- 
paragraph (a)(1) of this Rule. 

(b) Mortgage brokers which are registered with 
the Commissioner on the date this Rule becomes 
effective shall have until January \^ 1997 to meet 
the experience requirements of this Rule. 

Statutory Authority G. S. 53-236(h); 53-237(a): 53- 
241. 

.0305 ISSUANCE OF CERTIFICATE OF 
REGISTRATION 

(a) Upon receipt of a completed application and 
compliance with Section .0200 and Rules .0303 
and .0304 of this Subchapter, and payment of the 
fees required by G.S. 53-236 and G.S. 53-242, the 
Commissioner shall investigate the applicant 
pursuant to G.S. 53-237. If the Commissioner 
finds the applicant has met the provisions of G.S. 
53-237, the Commissioner shall register the appli- 
cant as either a mortgage broker or a mortgage 
banker. 

(b) The Certificate of Registration shall become 
void if the registrant does not engage in business 
as a mortgage banker or mortgage broker within 
60 days of receipt of the Certificate of Registra- 
tion. 

Statutory Authority G.S. 53-236; 53-237(a); 53- 
241: 53-242. 

.0306 NONTRANSFERABILITY OF 

CERTIFICATE OF REGISTRATION 

(a) A Certificate of Registration shall be neither 
transferable nor assignable. 

(b) The circumstances under which the Commis- 
sioner shall deem a change in the registrant's 
organizational structure to constitute a transfer or 
assignment of the Certificate of Registration shall 
include, but not be limited to, the following: 

(I) If the registrant is a corporation: 

(A) A change in ownership of 50% or 
more of the registrant's stock; 

(B) The conversion of the corporation into 
a general or limited partnership or 



IB) 



iCl 



sole proprietorship: 

(2) If the registrant is a general or limited 
partnership: 

(A) A change in one of the registrant's 
general partners; 

The conversion of the general partner- 
ship into a limited partnership, corpo- 
ration or sole proprietorship; 
The conversion of the limited partner- 
shi p into a general partnership, corpo- 
ration or sole proprietorship; 

(3) If the registrant is a sole proprietor: 

(A) The conversion of the sole proprietor- 
ship into a general or limited partner- 
ship or corporation; 

(B) The sale of al] of the assets of the 
registrant's business to another per- 
son. 

(c) Upon a change in organization as set forth in 
Paragraph (b) of this Rule, the Certificate of 
Registration shall become void and the registrant 
shall surrender its Certificate of Registration to the 
Commissioner within 30 days of such change. If 
the entity which results from the change in the 
registrant's organizational structure would like to 
engage in business as a mortgage banker or mort- 
gage broker in this State, It shall apply for a 
Certificate of Registration pursuant to Rule .0301 
of this Section. 

Statutory Authority G.S. 5 3 -237(c); 53-241. 

SECTION .0400 - OPERATIONS 

.0401 ANNUAL REGISTRATION FEE 

(a) On or before December 31 of each year, 
each registrant shall pay the annual fee set forth in 
G.S. 53-242. 

(b) Failure of a registrant to pay the annual fee 
within 30 business days of the date specified in 
Paragraph (a) of this Rule shall be grounds for 
revocation of its registration pursuant to G.S. 53- 
239(c). 

Statutory Authority G.S. 53-239(c); 53-241; 53- 
242. 

.0402 ANNUAL STATEMENT 

(a) No later than 90 days after the end of the 
registrant's accounting period, it shall file an 
annual statement which shall be obtained from the 
Commissioner and shall be filed pursuant to Rule 
.0101(c) of this Subchapter. 

(b) The annual statement referenced in Para- 
graph (a) of this Rule shall include a Statement of 



8:10 



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803 



PROPOSED RULES 



Financial Condition (balance she^t) for the previ- 
ous accounting period reflecting a minimum net 
worth and liquidity as set forth in Rules .0201. 
.0202 and .0203 of this Subchapter. 

(c) If there is any evidence that the Statement of 
Financial Condition (balance sheet) referenced in 
Paragraph (b) of this Rule is inaccurate, incom- 
plete or misleading, the Commissioner shall 
require the registrant to submit an audited State- 
ment of Financial Condition (balance sheet). 

(d) The annual statement shall be in writing and 
be verified by the oath of the registrant. 

(e) Failure of a registrant to submit an annual 
statement m the manner required by this Rule shall 
be grounds for revocation of its registration pursu- 
ant to G.S. 53-239(c). 

Statutory Authority G.S. 53-239(c): 53-241. 

.0403 SEGREG.\TION OF FEES 

(a) A mortgage broker and a mortgage banker 
that engages in tablefunding but does not engage in 
any other mortgage banking actisity shall immedi- 
ately deposit all third-parry fees and refundable 
fees in a segregated account in a federalh' insured 
financial institution. The account shall be in the 
name of the registrant. The account shall be used 
exclusively for third-party fees and refundable 
fees. 

(b) For purposes of this Rule "immediately" 
means within seven business days of receipt of the 
funds. 

Statutory Authority G.S. 53-238: 53-241. 

.0404 REFL-XDS 

If refunds are due, such refunds shall be made no 
later than 30 business days after an application for 
a loan js terminated for any reason or no later than 
30 business days after the closing of the loan. 

Statutory Authority G.S. 53-238(5): 53-238(6): 53- 
241. 

.0405 RECORD AND BOOKKEEPES'G 
REQOREMENTS 

(a) A registrant shall maintain books and records 
which shall include, at a minimum, the following 
(1) A record, such as a cash receipts jour- 
nal, of all monies received in connec- 



tion with each mortgage loan showing 
at least: 

(A) Identity of payor. 

(B) Date received. 

(C) Amount recei\ed. 



(D) Description of the purpose of pay- 
ment. 

(E) Identification of the loan to which the 
receipt relates, if any; 

(2) A sequential listing of checks written 
for each bank account relating to the 
registrant's business as a mortgage 
broker or mortgage banker, such as a 
cash disbursements journal, showing at 
least: 

(A) Payee, 

(B) Amount. 

(C) Date. 

(D) Purpose of payment, including identi- 
fication of the loan to which it relates, 
if any; 

(3) A file for each mortgage loan contain- 
ing: 

(A) Name of applicant, 

(B) Date of application. 

(C) Employee processing the application. 

(D) Compensation received by registrant, 

(E) Copies of all agreements or contracts 
with the applicant including commit- 
ment and lock in agreements, v.here 
applicable. 



ill 
(GJ 



All contracts, agreements and escrow 



instructions to or with any depository. 
Documents showing compliance with 
applicable State and Federal law, 
rules and regulations; 

(4) Samples of each piece of adsertising 
relating to the registrant's business of 
mortgage brokerage or mortgage bank- 
ing in North Carolina; 

(5) If the registrant is a corporation, gener- 
al or limited partnership, copies of the 
follov.'ing: 

(A) Articles of Incorporation or General 
or Limited Partnership Agreement. 

(Bj Corporate or partnership minutes, jf 
required by lav.', 

(C) Annual reports, if required by law, 
(b) All records required bv Paragraph (a) of this 
Rule shall be kept for a period of at least three 
years, and shall be available upon 72 hours notice 
by the Commissioner. Such records may be 
maintained in the form of magnetic tape, magnetic 
disk or other form of computer, electronic or 
microfilm media available for examination on the 
basis of computer printed reproduction, \'ideo 
display or other medium acceptable to the Com- 
missioner. Howe\'er. books and records kept in 
this manner shall be convertible into clearly legi- 
ble, tangible documents within 72 hours of request 



804 



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PROPOSED RULES 



by the Commissioner. This time period shall be 
extended for an additional reasonable time by the 
Commissioner if the registrant demonstrates to the 
satisfaction of the Commissioner that it cannot 
provide the records requested within 72 hours of 
request. 

(c) All records required by Paragraph (a) of this 
Rule shall be prepared in accordance with general - 
ly accepted accounting principles, where applica- 
ble. 

(d) A registrant shall notify the Commissioner of 
any change in the location of its books and re- 
cords. 

Statutory Authority G.S. 53-238: 53-239; 53-241. 

.0406 DISPLAY OF CERTIFICATE OF 
REGISTRATION 

(a) A registrant shall post its Certificate of 
Registration in plain view of customers at its 
principal office, each of its branch offices iji this 
State and any branch offices outside of this State at 
which mortgage loans are originated or made on 
residential real property as defined m G.S. 53- 
234(1) and (2). 

(b) A registrant shall notify the Commissioner of 
a change in the name under which it operates or 
the address of its principal office and any branch 
office as set forth in Paragraph (a) of this Rule. 
The notification shall be made at least 30 business 
days prior to the effective date of such change, 
shall provide the new name or address and shall be 
accompanied by a certificate reissuance fee of 
twenty-five dollars ($25.00) payable to the Com- 
missioner. Upon receipt of a Certificate of Regis- 
tration which contains the new address, a registrant 
shall surrender its former Certificate of Registra- 
tion to the Commissioner. 

Statutory Authority G. S. 53-122(3): 53-234(1): 53- 
234(2): 53-237(c): 53-241. 

SECTION .0500 - REPORTING AND 
NOTIFICATION REQUIREMENTS 

.0501 AMENDMENTS TO APPLICATION 

A registrant shall maintain a current application 
with the Commissioner. If the information con- 
tained in the application changes [n any material 
respect, the registrant shall notify the Commission- 
er within 30 business days of the effective date of 
such change. Notification to the Commissioner 
shall be accomplished either by letter or by revi- 
sion of the applicable pages of the application filed 
pursuant to Rule .0301 of this Subchapter. If the 



registrant elects to comply with this Rule by 
revising its application, it shall obtain the applica- 
ble pages of the application from the Commission- 
er. For the purposes of this Rule, the term "mate- 
rial" shall mean any information which would be 



likely to influence the granting of a Certificate of 
Registration. The term "material" shall include 
information concerning changes in the registrant's 
corporate officers, partners, or business structure. 
It shall also include changes in the address of the 
registrant's main or branch offices and any names 
under which the registrant operates. 

Statutory Authority G.S. 53-241. 

.0502 WITHDRAWAL/TERMINATION/ 
REGISTRATION/MTGE BANKER/ 
MTGE BROKER 

(a) A registrant shall notify the Commissioner in 
writing of its decision to cease operations as a 
mortgage banker or mortgage broker in this State 
within three business days of such decision. 

(b) A registrant shall surrender its Certificate of 
Registration to the Commissioner no later than 30 
business days after it has ceased operations in this 
State. 

Statutory Authority G.S. 53-241. 

.0503 IMPAIRMENT OF MINIMUM NET 
WORTH. LIQUIDITY OR SURETY 
BOND 

(a) A registrant shall immediately notify the 
Commissioner in writing if. at any time, it fails to 
meet the minimum net worth or liquidity require- 
ments of Rules .0201. .0202 or .0203 of this 
Subchapter. 

(b) A registrant shall immediately notify the 
Commissioner in writing of any cancellation or 
suspension of the surety bond required by Rule 
.0204 of this Subchapter. 

(c) For the purposes of this Rule, immediately 
means within three business days of discovery of 
the failure to meet the minimum net worth, liquidi- 
ty and bonding requirements of Rules .0201. 
.0202. .0203. .0204 of this Subchapter. 

Statutory Authority G.S. 53-236(h); 53-241. 

SECTION .0600 - PROfflBITED ACTS AND 
PRACTICES; INVESTIGATIONS 

.0601 PROHIBITED CONDUCT AND 
PRACTICES 

ia) For the purposes of G.S. 53-238(1) and (2^ 



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805 



PROPOSED RULES 



the terms "material facts," and "material factors, 
terms or conditions" shall mean any term, fact, 
factor or condition which is likely to influence, 
persuade or induce an applicant for a mortgage 
loan to take a particular action. 

(b) For the purposes of G.S. 53-238(6), acts and 
practices of a registrant which shall be deemed not 
in "good faith" or "fair dealing" shall include the 
following: 

(1) The failure to make a good faith effort 
to issue commitments and effect closing 
in a timely manner; 

(2) The failure to provide any of the disclo- 
sures in the manner and at the times 
required by this Subchapter; 
The failure to disburse funds in accor- 



ill 



i4j 



15) 



dance with a commitment to make a 
mortgage loan which js accepted by the 
applicant; 

To conduct business with an entity 
which it knows is an unregistered mort- 
gage broker or mortgage banker; 
To accept any fees at closing which 
were not disclosed iji accordance with 
this Subchapter. 



percentage of down payment required, 
that a higher interest rate or points may 
be required, or that restrictions as to 
the maximum principal amount of the 
loan offered may apply; 

(5) The advertisement of a specific time 
period within which a commitment will 
be issued unless a commitment will be 
issued to a qualified applicant within 
the time period specified; 

(6) The advertisement of a mortgage loan 
where a prevailing rate is indicated in 
the advertisement, unless the advertise- 
ment specifically states that the ex- 
pressed rate may change or not be 
available at commitment or closing. 

Statutory Authority G.S. 53-238: 53-241. 

.0603 EXAMINATIONS, INVESTIGATION 

The Commissioner or hns designee may examine 
or investigate a registrant when the Commissioner 
has reasonable grounds to believe that a registrant 
has violated any law or regulation of this State, the 
Federal government or any agency thereof. 



c 



Statutory Authority G.S. 53-238: 53-241. 

.0602 SOLICITATION ANT) ADVERTISING 

(a) A registrant shall not advertise mortgage 
loan products unless it will make such products 
available to a reasonable number of qualified 
applicants responding to the advertisement on the 
date that it appears or the registrant's next business 
day. Nothing in this Paragraph shall require a 
registrant to make a loan to an unqualified appli- 
cant. 

(b) No registrant shall fraudulently or deceitfully 
advertise a mortgage loan, or misrepresent the 
terms, conditions or charges incident to a mort- 
gage loan in any advertisement. Conduct which 
shall be deemed fraudulent, deceitful or misleading 
shall include the following: 

(1) The advertisement of immediate ap- 
proval of a loan application or immedi- 
ate closing of a loan; 

(2) The ad\'ertisement of a no-point mort- 
gage loan when points are a condition 
for commitment or closing; 

(3) The advertisement of an intentionally 
incorrect number of points; 

(4) The advertisement that an applicant will 
have unqualified access to credit with- 
out disclosing material limitations on 
the availability of credit, such as the 



Statutory Authority G.S. 53-238: 53-239: 53-240: 
53-241. 

.0604 ENTORCEMENT ACTIONS 

(a) The grounds upon which the Commissioner 
may either revoke or suspend a registrant's Certifi- 
cate of Registration shall include the following: 

(1) The making of any false statement in an 
application for registration, if the false 
statement would have been grounds for 
the denial of the application; or 

(2) The making of any false statement on 
any form or document requested by the 
Commissioner; or 

(3) One or more violations of the Registra- 
tion of Mortgage Bankers and Brokers 
Act or provisions of this Subchapter; or 

(4) The con\'iction of any crime which 
would have a bearing upon the fitness 
or ability of the registrant to conduct its 
business; or 

(5) The commission of any action which 
involves dishonesty, fraud or misrepre- 
sentation. This Subparagraph shall not 
be construed to apply to bonafide er- 
rors. 

(b) The Commissioner shall not revoke or 
suspend the license of a registrant without first 
providing the registrant with notice and an oppor- 



c 



c 



806 



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PROPOSED RULES 



tunity to be heard pursuant to G.S. 150B and 4 
NCAC 3B .0200. el seq^ 

Statutory Authority G.S. 53-238; 53-239; 53-241. 

.0605 HEARINGS 

All hearings conducted pursuant to this Subchap- 
ter and/or the Registration of Mortgage Bankers 
and Brokers Act shall proceed in accordance with 
G.S. 150B and 4 NCAC 3B .0200, ei seci_ The 
Commissioner may subpoena witnesses at all such 
hearings. 

Statutory Authority G.S. 53-239; 53-241. 

SECTION .0700 - DISCLOSURE 
REQUIREMENTS 

.0701 CONFLICTS OF INTEREST 

(a) A registrant has a conflict of interest if it 
provides the borrower with additional products or 
services under any of the following circumstances: 

(1) The registrant or its subsidiary or par- 
ent owns, controls or holds with the 
power to vote 10% or more of any 
class of equity securities or other bene- 
ficial interest of any person providing 
the additional products or services; or 

(2) The person providing the additional 
products or services owns, controls or 
holds with the power to vote 10% or 
more of any class of equity securities or 
other beneficial interest of the regis- 
trant, its subsidiary or parent; or 

(3) The same person owns, controls or 
holds with the power to vote 10% or 
more of any class of equity securities or 
other beneficial interest of both the 
registrant and the person providing the 
additional products or services; or 

(4) One or more persons is an officer or 
director of both the registrant and the 
person providing the additional products 
or services. 

(h) A registrant which has a conflict of interest 
as specified in Paragraph (a) of this Rule shall 
disclose the conflict of interest to the borrower in 
writing at the time it offers additional products or 
services. 

(c) The registrant shall inform the borrower in 
writing that it may receive a financial benefit as a 
result of the conflict of interest. 

(d) The registrant shall inform the borrower in 
writing that he may choose alternative sources to 
provide the required services. 



Statutory Authority G.S. 53-238; 53-241. 

.0702 MORTGAGE BROKER 

APPLICATION DISCLOSURES 

(a) This Rule shall apply to mortgage brokers 
and mortgage bankers that engage in tablefunding. 
but do not engage in any other mortgage banking 
activity. 

(b) At or prior to acceptance of the application, 
application fee or third-party fee, whichever shall 
occur first, the registrant shall disclose the follow- 
ing information in writing: 

(1) That it does not fund mortgage loans; 
£2} That it cannot guarantee acceptance into 

any particular loan program, nor can it 

guarantee any specific loan terms or 

conditions; 
(3) The amount of the application fee, and 

the terms or conditions of refund, if 

any. 

(c) Within three business days after the applica- 
tion is received or prepared, the registrant shall 
disclose the following information in writing by 
delivering it or placing it in the mail to the loan 
applicant: 

(1) A good faith estimate of all settlement 
costs; 

(2) The specific services which will be 
provided or performed for the applica- 
tion fee and a description of the costs of 
each service; 

(3) The maximum points or fees of any 
nature, however denominated, including 
premium pricing, payable to the regis- 
trant by the lender and any fees or 
points, however denominated, to be 
paid by the applicant directly to the 
registrant. In those instances where 
fees and points are paid from the loan 
proceeds and are not considered to be a 
cost of credit for the purposes of Regu- 
lation Z. a statement shall be included 
to the effect that such points and fees 
are costs for obtaining the loan which 
the borrower may be obligated to repay 
with interest over the term of the mort- 
gage loan. Alternatively, in those 
instances where fees and points are paid 
directly to the registrant at or before 
closing and are not considered to be a 
cost of credit for the purposes of Regu- 
lation Z. a statement shall be included 
to the effect that such points and fees 
are costs for obtaining the loan and that 
they are an addition to the amount 



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807 



PROPOSED RULES 



which the borrower will actually re- 
ceive from the loan; 
(4) Any premiums or bonuses to be paid to 
the registrant by the mortgage banker 
or exempt organization and/or the basis 
of its eligibility to receive premiums or 
bonuses. 

(d) If applicable, the fact that fees are being 
divided between more than one mortgage broker 
and/or mortgage banker and/or exempt organiza- 
tion and the dollar amount or the percentage of 
such fees. If such fees cannot be determined 
precisely, a good faith estimate of such fees shall 
be provided. 

(e) Any third-party fees collected in excess of 
the actual cost shall be returned at or prior to 
closing. 

(f) Some or all of the disclosures required by 
Paragraphs (a) and (b) of this Rule may appear on 
forms used to comply with applicable State and 
Federal laws, rules or regulations or. at the option 
of the registrant, may be made as separate disclo- 
sures. 

(g) The registrant shall provide each applicant 
with a copy of the application upon request. 
Where both a husband and wife apply jointly for a 
mortgage loan, the registrant may provide only 
one copy of the application to either spouse. 

(h) Nothing in this Rule shall be construed to 
prohibit the acceptance of telephone applications 
provided that the applicant, upon request, is given 
the opportunity to review the information he orally 
submits within 10 business days of the telephone 
application and provided further that the applicant 
recei\'es the appropriate disclosures as set forth in 
this Rule. 

Statutory- Authority G.S. 53-238: 53-241. 

.0703 MORTGAGE BANKER 

APPLICATION DISCLOSURES 

(a) This Rule shall not apply to mortgage bank- 
ers that engage in tablefunding. but do not engage 
in any other mortgage banking activity. 

(b) Prior to the acceptance of an application, 
application fee or third-party fee, whichever shall 
occur first, a mortgage banker shall disclose the 
following in writing: 

( 1 ) The amount of the application fee, if 

anx; 

(2) Whether the application fee or any 
third-party fee is refundable. For all 
refundable fees, the mortgage banker 
shall disclose the terms and conditions 
of refund. 



(c) Within three business days after the applica- 
tion is received or prepared, the mortgage banker 
shall disclose in writing the mortgage banker's 
good faith estimate of settlement costs by deliver- 
ing it or placing it in the mail to the loan appli- 
cant. 

(d) Any third-party fees collected in excess of 
their actual cost shall be returned at or prior to 
closing. 

(e) Some or alf of the disclosures required by 
Paragraph (a) of this Rule may appear on forms 
used to comply with applicable State or Federal 
laws, rules or regulations or. at the option of the 
mortgage banker, may be made as separate disclo- 
sures. 

if} A mortgage banker shall provide each appli- 
cant with a copy of his application upon request. 
Where a married couple applies jointly for a 
mortgage loan, the registrant may provide only 
one copy of the application to either spouse. 

(g) Nothing in this Rule shall be construed to 
prohibit the acceptance of telephone applications 
provided that the applicant, upon request, is given 
the opportunity to re\'iew the information he orally 
submits within 10 business days of the telephone 
application and provided further that the applicant 
recei\'es the appropriate disclosures as set forth in 
this Rule. 

Statutory Authority G.S. 53-238: 53-241. 

.0704 DISCLOSURE ARRGMTS BETWEEN 
MORTGAGE BANTERS/MORTGAGE 
BROKERS 

If a mortgage loan in\ol\'es more than one 
registered mortgage banker or mortgage broker. 
the registrants shall agree among themsehes as to 
u'hich shall comply \*.ith the disclosure and other 
requirements imposed under Rules .0702 and 
.0703 of this Section consistent with applicable 
Federal and State law, rules and regulations. In 
the absence of agreement, all such registrants shall 
be liable therefor. 



Statutory Authority G.S. 53-241. 

.0705 COAEVHTMENT DISCLOSUTiES 

(a) At the issuance of a commitment, or accep- 
tance of a commitment fee, or u'ithin three days 
after the application has been received or prepared, 
whiches'er is later, a mortgage banker shall dis- 
close the following information [n writing by 
delivering it or placing it in the mail: 

(1 ) The following terms and conditions of 
the commitment: 



808 



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August 16, 1993 



PROPOSED RULES 



IB) 

im 



TTie amount of the commitment fee, if 
any. 



Whether the commitment fee is re- 
fundable and the terms and conditions 
of refund. 

The time during which the commit- 
ment is irrevocable and may be ac- 
cepted by the borrower. 
The expiration date of the commit- 
ment. 

The amount of fees and charges pay- 
able at the time of commitment, if 
applicable. 
(2) The following terms and conditions of 
the mortgage loan: 

(A) Identification of the entity which will 
fund the loan, 

(B) Identification of the borrower(s), 

(C) Identification of the property securing 
the loan, 

(D) Principal amount of the loan, 

(E) Term of the loan, 

(F) Interest rate of the loan expressed as 
an annual percentage rate as of the 
date of closing, with a disclaimer that, 
should the closing date not be met, 
the annual percentage rate may yary 
slightly. TTie annual percentage rate 
shall be calculated as provided in the 
Truth In Lending Act (15 USC 1606) 
and Regulation Z 112 CFR Part 
226.22), 

(G) Initial monthly payment of principal 
and interest and monthly payment of 
principal and interest where different 
from the initial monthly payment of 
princip al and interest. 

(H) Where applicable, a statement that a 
balloon payment will be required, 

(I) If the loan js an adjustable rate loan, 
in addition to the foregoing, the 
mortgage banker shall disclose the 
frequency of change, the index, the 
margin and any relevant caps, 

(J) Where the commitment is a prevailing 
rate commitment, the index and 
margin, if any, upon which the rate 
for the loan will be based, 

(K) Where applicable, a statement that 
private mortgage insurance will be 
required. 

(L) Where applicable, a statement that 
negative amortization may apply. 

(M) Whether and under what conditions 
the loan is assumable. 



£N) Where applicable, a statement that 
funds are to be escrowed. 

(O) The total points to be accepted direct- 
ly or indirectly l^y or on behalf of the 
mortgage banker at. prior to or after 
closing. 

(P) The mortgage banker shall separately 
identify the points, including premium 
pricing, payable by the lender to a 
mortgage broker or a mortgage bank- 
er. Upon receipt of a copy of the 
separate fee agreement between the 
mortgage broker and the applicant, 
the mortgage banker shall disclose 
any fees or points to be paid by the 
applicant directly to the mortgage 
broker. In instances where mortgage 
brokerage fees and points are paid 
from the loan proceeds and are not 
considered to be a cost of credit for 
the purposes of Regulation Z, a state- 
ment shall be included which states 
that such points and fees are costs of 
obtaining the loan which the borrower 
may be obligated to repay with inter- 
est over the term of the loan. Alter- 
natively, in instances where mortgage 
brokerage fees and points are paid 
directly to the mortgage broker in full 
at or before the closing and are not 
considered to be a cost of credit for 
the purposes of Regulation Z, a state- 
ment shall be included which states 
that such points and fees are costs of 
obtaining the loan and that they are an 
addition to the amount which the 
borrower will actually receive for the 
loan. 

(Q) The mortgage banker shall separately 
identify any premiums or bonuses to 
be paid to the mortgage broker or 
mortgage banker that engages in 
tablefunding. but does not engage in 
any other mortgage banking activity. 

(R) No points, however denominated by 
the mortgage banker, may be required 
by the mortgage banker as a condition 
for closing a mortgage loan if they 
have not been previously disclosed 
pursuant to this Rule. 
(3) All conditions precedent to closing, 
including the following, if applicable: 

(A) Title report and title insurance. 

(B) Property survey. 

(C) Copy of certificate of occupancy for 



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August 16, 1993 



809 



PROPOSED RULES 



use. 

(D) Satisfactory final inspection (if new 
construction). 

(E) Evidence of hazard insurance. 

(b) A commitment fee and any points accepted 
by a mortgage banker prior to closing must be 
refunded in full if an applicant who has provided 
complete and correct credit information as required 
by the application form js rejected as not credit 
worthy. 

(c) Every mortgage banker shall provide each 
applicant with a written commitment which incor- 
porates the items listed in Paragraph (a) of this 
Rule. However, in cases where a mortgage broker 
which is an exclusive agent of the mortgage banker 
agrees to prepare the Good Faith Estimate of 
Settlement Costs pursuant to Regulation X. the 
mortgage banker need not disclose terms and 
provisions pursuant to Paragrap h (a) of this Rule 
which have already been disclosed on the Good 
Faith Estimate of Settlement services. 

(d) A mortgage banker shall provide each 
applicant with a copy of the commitment. If the 
applicant js a married couple, the mortgage banker 
may provide only one copy to either spouse. 

(e) The items required to be disclosed by Para- 
graph (a) of this Rule may be incorporated into the 
commitment or into one or more forms required 
by State or Federal law, rules and regulations, or 
such items may be contained in a separate form. 

(f) Any additional settlement costs, documents 
or other items required to close the loan which are 
found to be necessary after the commitment has 
been issued shall be disclosed to the applicant in 
writing within three business days of the discovery 
of the need for such items. 

Statutory Authority G.S. 53-238: 53-241. 

.0706 MORTGAGE LOCK-IN 
AGREEMENT 

(a) If the applicant chooses to lock in an interest 
rate, prior to the acceptance of payment for any 
points or a lock-in fee, or within three business 
days after the application has been prepared or 
received, whichever is later, a mortgage banker 
shall provide the applicant with a written lock-in 
agreement signed by the mortgage banker and the 
applicant. The lock-in agreement shall contain the 
following information: 

(1 ) The term of the loan. 

The interest rate and any points. 
The expiration of the lock-in period. 
The lock-in fee. 



locked in. 



(6) 



Whether the lock-in or commitment fee 
is refundable and the terms and condi- 
tions of refund. 



01 
(31 
14} 
15) 



Where applicable, the commitment fee 



(7) The source of the funding of the loan. 

(b) The length of the lock-in period shall be a 
time period within which the mortgage banker can 
reasonably expect to close the loan given the 
prevailing market conditions at the time of the lock 
in. 

(c) Nothing contained herein shall be construed 
to prohibit a mortgage broker from accepting a 
lock-in fee for transmittal to a mortgage banker or 
exempt organization prior to the issuance by the 
mortgage banker or exempt organization of a 
commitment, provided that prior to acceptance of 
a lock-in fee: 

(1) The mortgage broker provides the 
applicant with a lock-in agre^iment 
executed by the mortgage banker which 
conforms with the requirements of 
Paragraph (a) of this Rule; 

(2) The lock-in fee is made payable by the 
applicant to the mortgage banker or 
exempt organization. A mortgage 
broker may only accept a lock-in fee 
for transmittal to the mortgage banker 
or exempt organization. 

(d) The items required to be disclosed by Para- 
graph (a) of this Rule may be incorporated into the 
lock-in agreement or into one or more forms 
required by State and Federal law, rules and 
regulations. 

(e) A lock-in fee, including any points accepted 
by the mortgage banker prior to closing, shall be 
refunded in full if an applicant who provides 
complete and correct information as required by an 
application js rejected as not credit worthy. 

Statutory Authority G.S. 53-238: 53-241. 

niotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Cemetery 
Commission intends to adopt rule cited as 4 NCAC 
5C .0308. 

1 he proposed effective date of this action is 
November 1. 1993. 

Instructions on How to Demand a Public Hearing: 
Send written notice denumding a hearing within 15 
days of the publication date to the North Carolina 



( 



810 



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PROPOSED RULES 



Cemetery Commission, 1 1 00 Navaho Drive , GL-2, 
Raleigh. NC 27609. 

IXeason for Proposed Action: The proposed rule 
requiring the salesperson to put their sales license 
number on the sales contract would allow the 
Commission staff to better monitor salespeople. 

i^omment Procedures: Written comments may be 
sent to the North Carolina Cemetery Commission, 
1} 00 Navaho Driver, GL-2, Raleigh, NC 27609. 

CHAPTER 5 - CEMETERY COMMISSION 

SUBCHAPTER 5C - LICENSING 

SECTION .0300 - INDIVIDUAL PRE-NEED 
SALESPEOPLE 

.0308 CONTRACT IDENTIFICATION 

Each contract for the sale of interment rights, 
merchandise and services shall contain the name 
and license number of the salesperson witnessing 
the signature of the purchaser on the contract. 

Statutory Authority G.S. 65-49; 65-58. 



:ic:);:jc%:}!:}c:i(^:ic:ic:ic:Jc:)c:{c3{c:jc:{c 



iSotice is hereby given in accordance with G.S. 150B-2L2 that the North Carolina State Ports Authority 
intends to repeal rules cited as 4 NCAC 13A .0103 - .0104 and amend rule cited as 13E .0901. 

1 he proposed effective date of this action is November 1 , 1993. 

Instructions on How to Demand a Public Hearing (must be requested in writing within 15 days of notice): 
By mailing a request for public hearing to Thomas J. Green, Jr. at: Post Office Box 9002. 2202 Burnett Blvd. , 
Wilmington, N.C 28402 on or before August 31, 1993. 

ixeason for Proposed Action: 

4 NCAC 13A .0103 - .0104 - Rules not required. 

4 NCAC 13 E .0901 - To update State Ports Authority traffic laws and reflect changes in State Ports Authority 

operations. 

i^omment Procedures: Comments may be made in writing to Thomas J. Green, Jr., N.C. State Ports 
Authority, P. O. Box 9002, Wilmington, N.C. 28402 on or before September 15. 1993. 

CHAPTER 13 - STATE PORTS AUTHORITY 

SUBCHAPTER 13A - DEPARTMENTAL RULES AND GENERAL PROVISIONS 



8:10 NORTH CAROLINA REGISTER August 16, 1993 811 



PROPOSED RULES 



SECTION .0100 - ORGANIZATION OF STATE PORTS AUTHORITY 

.0103 BOARD OF STATE PORTS AUTHORITY AND SECRETARY OF ECD 

(a) The board of the State Ports Authority consists of the following members: 
f4^ seven members appointed by the Governor, 

f3^ two member s appointed by the General A ss embly upon the recommendation of the Speaker of the 

House. 
0j two members appointed by the General Assembly upon the recommendation of the President of the 

Senate. 

(b) The board establishe s policy for the accomplishment of the function s of th e Port s Authority and perform s 
any function s a s signed by statute. 

fe^ — The Secretary of Commerce with the approval of the Ports Authority appoints management personnel. 
The Secretary of Commerce or hi s designee appoint s other employees, di s mi s ses and fixes compensation of 
s uch other employees as he deems necessary to carry out the purposes of th e Porta Authority. 

Statutory Authorit)' G.S. 143B-452; 143B-453; 143B-454. 

.0104 EXECUTIVE DIRECTOR 

The executive director is appointed by the Secretary of Commerce with the approval of the Ports Authority. 
The executiv e director operates and manages the ports in accordance with the directions and policies of the 
Board of the State Ports Authority. The executive director also recommends policies and action s to the board 
for its consideration. 

Statutory Authority G.S. 1438-454(5). 

SUBCHAPTER 13E - SECURITV AND SAFETY 

SECTION .0900 - SCHEDULES 

.0901 WILMINGTON ORDINANCE SCHEDULES 

(a) The following schedule lists maximum speed limits for specified streets in the Wilmington Terminal: 
NAME OF STREET MAXIMUM SPEED LlNtf F 

Myers Boulevard 20 MPH 

Woodbine Str e et 20 MPH 

Warehouse Road 20 MPH 

Industrial Road 20 MPH 

Commerce Street 20 MPH 

Cre s ent Street 20 MPH 

Fir s t Street 20 MPH 

Second Street 20 MPH 

Third Street 20 MPH 

Fourth Street 20 MPH 

Fifth Street 20 MPH 

Maritime Boulevard 20 MPH 

Sixth Street 20 MPH 

Seventh Street 20 MPH 

Eighth Street 20 MPH 

Ninth Street 20 MPH 

Tenth Street 20 MPH 

Eleventh Street 20 MPH 

Twelfth Street 20 MPH 

Thirteenth Street 20 MPH 

Fourteenth Street 20 MPH 

All Streets 15 MPH 



812 8:10 NORTH CAROLINA REGISTER August 16, 1993 



PROPOSED RULES 



Inside all Transit and 

Storage Buildings 10 MPH 

All Open Berth Areas 15 MPH 

(b) The following schedule lists the locations of stop signs in the Wilmington Terminal: 

Myers Boulevard at North Gate House. 

We s t side of Transit Road at intersection of Warehouse Road. 

Northeast comer of Warehouse Road and First Street. 

Northwest comer of Warehouse Road and Fourth Street. 

Northwest corner of Fifth Street and Industrial Road. 

Southeast corner of Fifth Street and Industrial Road. 

Northwest corner of Maritime Boulevard and Industrial Road- 
Southeast corner of Maritime Boulevard and Industrial Road. 

Southeast corner of Maritime Boulevard and Transit Road. 

Northwest corner of Maritime Boulevard and Fifth Street. 

Southeast comer of Maritime Boulevard and Commerce Street. 

Maritime Boulevard at Gate House. 

Northeast corner of Industrial Road and Sixth Street. 

Southwest corner of Commerce Street and Sixth Street. 

Southwest corner of Industrial Road and Seventh Street. 

Southeast comer of Warehouse Road and Seventh Street. 

Northeast comer of Warehouse Road and Eighth Street. 

Southwest corner of Industrial Road and Eighth Street. 

Northeast corner of Industrial Road and Cresent Street. 

Northeast corner of Warehouse Road and Ninth Street. 

Southwest comer of Industrial Road and Ninth Street. 

Northeast corner of Industrial Road and Tenth Street. 

Northwest corner of Cresent Street and Tenth Street. 

Southwest corner of Commerce Street and Tenth Street. 

Northeast corner of Warehouse Road and Eleventh Street. 

Southwest comer of Industrial Road and Eleventh Street. 

Northeast corner of Sixth Street and Industrial Road. 

Southeast corner of Eleventh Street and Industrial Road. 

Northeast corner of Industrial Road and Commerce Street. 

Northeast corner of Industrial Road and Maritime Blvd. 



Southwest comer of Industrial Road and Maritime Blvd. 
Northeast corner of Fourth Street and Industrial Road. 



Southwest corner of Fourth Street and Industrial Road. 



Northwest corner of South Warehouse Road and Maritime Blvd. 
Southeast corner of South Warehouse Road and Fourth Street. 
Northwest corner of Warehouse Road and Third Street. 



Southeast corner of Warehouse Road and Third Street. 



Northwest corner of Woodbine Street and Transit Road. 
Northeast corner of Industrial Road and Fifth Street. 
Southeast corner of Warehouse Road and Transit Road. 



(c) The following schedule lists the locations of yield signs in the Wilmington Terminal: 
Northwe s t corner of Transit Road and Woodbine Street. 
Southeast comer of Transit Road and RR Scale Road. 
Southwest corner of Transit Road and No. 1 Ramp. 
Southwest comer of Transit Road and No. 2 Ramp. 
Northeast comer of Transit Road and Second Street. 
Southwest corner of Warehouse Road and Second Street. 
Southwest comer of Transit Road and No. 3 Ramp. 
Northeast comer of Transit Road and Third Street. 
Southwe s t corner of Warehouse Road and Third Street. 
Northwest comer of Industrial Road and Third Street. 



8:10 NORTH CAROLINA REGISTER August 16, 1993 813 



PROPOSED RULES 



Southwest comer of Transit Road and No. 4 Ramp. 

Northeast comer of Transit Road and Fourth Street. 

Southwe s t corner of Industrial Road and Fourth Street. 

Northeast comer of Industrial Road and Fourth Street. 

Southwest comer of Transit Road and No. 5 Ramp. 

Southwest comer of Transit Road and No. 6 Ramp. 

Northeast corner of Transit Road and Maritime Boulevard. 

West Exit of Parking Lot at Maritime Boulevard and Industrial Road. 

Southwest corner of Transit Road and No. 7 Ramp. 

Northeast corner of Transit Road and Seventh Street. 

Northwest comer of Warehouse Road and Commerce Street. 

Northwest comer of Industrial Road and Commerce Street. 

Southeast comer of Fifth Street and Industrial Road. 

Southeast corner of Industrial Road and Twelfth Street. 

(d) The following schedule lists the locations of railroad warning signs in the Wilmington Terminal: 

North side of Transit Road and North Gate Crossing. 
South side of Transit Road at North Gate Crossing. 
North side of Transit Road at intersection of Warehouse Road. 
South side of Transit Road at intersection of Warehouse Road. 
East side of Warehouse Road at intersection of Transit Road. 
Northwest comer of Third Street and Industrial Road. 
Southeast comer of Third Street and Warehouse Road. 
Northwest corner of Fourth Street and Industrial Road. 
South side of Fourth Street south of Cargo Shelter No. 1. 
West side of Transit Road at Lumber Ramp Crossing. 
East side of Transit Road at Lumber Ramp Crossing. 
North side of Maritime Boulevard at East Lumber Yard Crossing. 
South side of Maritime Boulevard at East Lumber Yard Crossing. 
South side of Maritime Boule%ard at Main Gate Crossing. 
North side of Maritime Boule\ard at Main Gate Crossing. 
South side of Industrial Road at Tv^'elfth Street Crossing. 
North side of Industrial Road at Twelfth Street Crossing. 

(e) The following schedule lists the locations of no thru traffic signs in the Wilmington Terminal: 

Southwest comer of Warehouse Road and First Street. 
Northeast corner of Warehouse Road and Fourth Street. 
Warehouse Road. 
Inside all transit and storage buildings. 

(f) The following schedule lists the locations of do not enter signs in the Wilmington Terminal: 

Southwest comer of Transit Road and RR Scale Road. 

(g) The following schedule lists parking ordinances in the Wilmington Terminal: 

(I) The follo\'>'ing schedule lists the locations of no parking between signs areas: 

Southwest comer of Transit Road and Ramp No. 1 to west side of Transit Road opposite loading door 

No. 6 of Transit Shed No. 1. 

West side of Transit Road opposite loading door No. 4 of Transit Shed No. 2. to Northwest comer 

of Transit Road and Ramp No. 2. 

East side of Transit Road from North end of Warehouse No. 3 to North side of Personnel Office. 

East side of Transit Road from South side of Personnel Office to Northeast comer of Transit Road 

and Second Street. 

Southeast comer of Transit Road and Second Street to East side of Transit Road opposite loading door 

No. 4 in Warehouse No.l. 

Southeast corner of Transit Road and Third Street to Northeast corner of Transit Road and Fourth 

Street . 

Southeast comer of Transit Road and Maritime Boulevard to Northeast comer of Transit Road and 

Seventh Street. 

Southwest corner of Warehouse Road and Third Street to Northwest corner of Warehouse Road and 



814 8:10 NORTH CAROLINA REGISTER August 16, 1993 



c 



c 



c 



PROPOSED RULES 



# 



# 



Fourth Street. 

Southeast corner of Warehouse Road and Third Street to Northeast corner of Warehouse Road and 
Fourth Street. 
(2) The following schedule lists the areas in which parking is prohibited and no parking signs will be 
erected: 
Northwest corner of Eleventh Street. 
Northwest corner of Ninth Street. 
South corner of Transit Shed Number 4. 
Northwest corner of Maritime Boulevard, 
(h) The following schedule lists the areas in which smoking is prohibited in the Wilmington Terminal: 

(1) Smoking is prohibited in all areas west of the railroad tracks along Transit Road and on the South 
Open Berth. Smoking will be permitted only within designated smoking areas. 

(2) Smoking is also prohibited in Storage Warehouses 1,2, 3, and 4 and Cargo Shelter 1 and signs 
are posted in the following locations; 

North and South ends of East and West sides of Transit Shed 1 . 
North and South ends of East and West sides of Transit Shed 2. 
North and South ends of East and West sides of Transit Shed 3. 
North and South ends of East and West sides of Transit Shed 4. 
North and South ends of East and West sides of Warehouse 1 . 
North and South ends of East and West sides of Warehouse 2. 
North and South ends of East and West sides of Warehouse 3. 
North and South ends of East and West sides of Warehouse 4. 
North and South ends of Cargo Shelter 1 . 
(i) The following schedule lists streets in the Wilmington Terminal which are one way: 

Twelfth Street is limited to one-way traffic with such traffic moving from Industrial Road eastbound 
to Pennsylvania Avenue. 

Tenth Street h limited to one-way traffic west bound from Commerce Street to Industrial Road. 
Commerce Street is limited to one way traffic east bound from Industrial Road to Tenth Street. 



$ 



Inbound traffic on the south gate access road is limited to one way traffic west bound from the south 
gate to Industrial Road. 

The south gate exit road is limited to one-way traffic east bound from Industrial Road to the River 
Road. 
(j) The following schedule lists parking regulations in effect on the North Carolina Maritime Building — 
Wilmington facility: 

(1) The three parking areas adjacent to the North Carolina Maritime Building, 2202 Burnett Boulevard, 
Wilmington, N.C., and identified as parking areas one, two and three are restricted as follows: 

(A) Parking area number one immediately north of the North Carolina Maritime Building shall be by 
assignment only. The executive director is hereby authorized to make assignments to individuals 
or companies for the parking of automobiles in this area. 

(B) Parking area number two paralleling the driveway immediately east of the North Carolina 
Maritime Building is restricted to visitors to the North Carolina Maritime Building. 

(C) Parking area number three to the south of the North Carolina Maritime Building is restricted to 
employees of the Ports Authority or employees of tenants on the Port Authority's premises or 
visitors and guests of the Ports Authority or its tenants. 

(2) Vehicles parked in violation of the foregoing regulations may be towed away at the owner's 
expense. 

Statutory Authority G.S. 143B-461 . 

amend rules cited as 10 NCA C 22G . 0504 - . 0506, 

TITLE 10 - DEPARTMENT OF .0509 - .0510; adopt rules cited as 10 NCAC 22G 

HUMAN RESOURCES .0512 - .0515: 22S .0101 - .0102. .0201 - .0202. 

.0301 -.0303. .0401 - .0404. .0501 - .0503, .0601 

\l ^ ■ I, u ■ , •,/ ^ c - .0603. .0701 - .0706. .0801 - .0803; and repeal 
IMotice IS hereby given m accordance with G.S. . . . .„ ' 



150B-21.2 that the Division of Aging intends to 



rules cited as 10 NCAC 22G .0508. .0511. 



8:10 NORTH CAROLINA REGISTER August 16, 1993 815 



PROPOSED RULES 



1 he proposed effective dare of this action is 
November 1. 1993. 

1 he public hearirii; will he conducted at 2:00 
p.m. cm August 31 , 1993 at the Division of Aging, 
693 Palmer Drive, Room 127, Raleigh, N.C. 
27626-0531. 

Ixeason for Proposed Action: 
10 NCAC 22G .0504 - .0506, .0509 - .0510, 
.0512 - .0515, .0508, .0511 - Implementation of 
policy to provide nutrition services to older per- 
sons. 

10 NCAC 22S .0101-. 0102, . 0201 - . 0202, . 0301 
- .0303, .0401 - .0404, .0501 - .0503, .0601 - 
.0603, .0701 - .0706, .0801 - .0803 - Implementa- 
tion of policy for the designation of planning and 
service areas and area agencies on aging. 

K^onunent Procedures: Written comments will be 
received by the Director of the Division of Aging 
through September 14. 1993. Verbal comments 
will be heard at the public hearing. 

CHAPTER 22 - OFFICE FOR AGEVG 

SUBCHAPTER 22G - PROGRAM 
OPERATIONS 

SECTION .0500 - NTTRITION PROGRAM 
FOR THE ELDERLY 

.0504 DEFEsmON OF CONGREGATE AND 
HOME-DELIVERED MEALS 

(a) A congregate meal is a hotT or cold nutri- 
tionally balanced meal that meets one-third of the 
current daily recommended dietary allowance (as 
recommended by the Food and Nutrition Council) 
served in strategically located centers such as 
schools, churches, community centers, senior 
centers, and other public or private facilities where 
older persons can obtain other social and rehabili- 
tative services. Besides promoting better health 
among the older segment of the population through 
improved nutrition, such a program is aimed at 
reducing the isolation of old age and offering older 
person the opportunity to live their remaining 
years in dignity. 

(b) A home-delivered meal « consists of a hot^ 
cold, frozen, dried, canned or supplemental food, 
nutritionally s ound meal that meets one-third of the 
current NRC daily recommended dietary allowance 



served in the home to a home-bound older person. 
Such a program is aimed at promoting better 
health among the older segment of the population 
through improved nutrition and at keeping the 
individual in his or her own home rather than in 
an institution by providing the opportunity to 
achieve greater independence in meal preparation 
and the activities of daily living. 

Statutory Authority G.S. 143B-181 . 1 (c). 

.0505 STAFFING 

In addition to federal requirements for staffing of 
nutrition services providers, the following state 
policies shall be adhered to: 



(1) 



(2) 



(3) 



i4i 



Consideration shall be given to employ- 
ing minority individuals at least in pro- 
portion to the numbers of minority older 
persons represented among the nutrition 
service participants; and 
Each nutrition service provider which 
receives Title III Home and Community 
Care Block Grant funds shall have a 
trained made arrangements for a licensed 
nutritionist or dietitian efl as a staff, paid 
consultant or on a volunteer basis to 
certifS' the menu . A qualified dietitian or 
nutritionist is one who possesses, as a 
minimum, a Bachelor's Degree in dietet- 
ics, foods, nutrition or institutional man- 
agement and is licensed or exempted by 
the State of North Carolina a registered 
member of the American Dietetic Associ 
ation. or has a Master's Dogreo in public 
health nutrition: plus one y e ar e xperience 

in food s ervice. Exception s to the s e 

qualification s must be approved by the 
Divi s ion of Aging ; 

The nutrition service provider shall pro- 
vide staff to operate the program includ- 
ing, at a minimum, a paid nutrition pro- 
gram director, and a paid site manager; 
TTie nutrition program director must be 
employed by and be responsible to the 
nutrition service provider and shall be 
empov^'ered with the necessary authority 
to conduct the day-to-day management 
and required administrative functions; 
The site manager may be paid from 



i5j The 

Home and Community Care Block funds 

for no more than four hours per day; 

(6) Training Requirements: 

(a) Within 12 months of employment all 

nutrition program directors without 

prior academic training in food service 



816 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



PROPOSED RULES 



management shall complete a minimum 
of J_5 hours (one semester unit) of 
instruction in food service sanitation; 
(b) Within 12 months of employment the 
nutrition program director must partici- 
pate in training on Congregate Nutrition 
Program Management arranged by the 
Division of Aging. 

Statutory Authority G.S. 143B-18I. 1(c). 

.0506 CONGREGATE SITE 
REQUIREMENTS 

In addition to federal site requirements, all 
congregate nutrition sites shall meet the following 
site requirements: 

(1) have a paid site director who is responsi- 
ble for activities at the site; .Where Title 
III C funds are utiliz e d, they can pay for 
a maximum of five hour s [x;r day ; afi4 

{¥) s erve an average of at least 25 meals per 

day; and 

(2) 0j make special provisions as necessai-y 
for the service of meals to eligible handi- 
capped individuals with limited mobility; 

(3) (4) be located in a facility where all 
eligible individuals will feel free to visit. 
Site selection shall take into consideration 
the type and location of the facility so as 
not to offend the cultural and ethnic 
preferences of the eligible individuals in 
the service area; afld 

(4) (&) operate five days per week ; and ^ 52 
weeks per year, except designated holi- 
days or emergency situations. Partici- 
pants shall be notified at least two weeks 
in advance of designated holidays; 

(5) {6j meet all local and state fire codes 
and building code requirements ; and 

(6) f7) meet all local and state sanitation 
codes adopted in accordance with W 
NCAC IQA .0 4 00 15A NCAC 18A 
.2600 ; awi 

(7) {Sj be located in areas where there are 
high concentrations of older adults with 
greatest economic needr ^ 

(8) do a reassessment of participants once 
per year and u pdate client registration 
forms; 

(9) develop emergency plans for each site for 
medical emergencies and for evacuation 
in case of fire or explosion. Conduct fire 
drills at least quarterly during hours of 
site operation; 



(10) inform the participants of agency proce- 
dures governing provision of service, 
confidentiality, waiting lists, service 
priorities, complaint and grievance, and 
other matters germane to the participant's 
decision to accept service; 

(11) have a written plan which describes 
procedures to be followed in case a par- 
ticipant becomes ill or is injured shall be 
thoroughly explained to staff, volunteers, 
and participants and shall be posted in at 
least one visible location jri each nutrition 
site; and 

(12) be able to recruit, train, and supervise 
volunteers. Supervision must be provided 
in portioning of food onto plates by 
volunteers. 

Statutory Authority G.S. I43B-181.1(c). 

.0508 CONTRIBUTIONS FOR NUTRITION 
SERVICES 

(a) Each area agency shall develop clear written 
policies for its ar e a and s ubcontractor s regarding 
contribution s for services received through the 
program. — These policies shall address, as a mini 
mum, u s e of suggested contribution schedules, 
contribution policies — for s taff and — guests, and 
provi s ion s for protecting the confidentiality of 

individual — client — contribution — amount s . Such 

policie s s hall be con s i s tent with the federal rcgula 
tions — as — reprinted — m — Section — 4 06. 10 — of the 
Divi s ion' s "Manual of Policies and Procedure s ." 

ib) — Nutrition services providers shall use all 
contribution s to increase the number of meals 
served. 

Authority G.S. 143B-W: 143B-138: 45 C.F.R. 
Part 1321.141. 

.0509 HOME-DELIVERED MEALS 
STANDARDS 

The Division of Aging requires all nutrition 
services providers who provide home-delivered 
meals with Title — W — assistance Home and 
Community Care Block Grant funds to meet the 
following standards: 

(1) Standard of Participation 

(a) Home-delivered meals shall be provided 
only to a person age 60 or over and the 
spouse of the person regardless of age 
if one or the other is homebound by 
reason of illness or incapacitating 
disability. 

(b) Meals shall be delivered only to 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



817 



PROPOSED RULES 



fe> 



(2) 
(a) 



(b) 



(c) 



(d) 
(e) 

(f) 



(g) 



(3) 
(a) 



persons residing in a home setting and 
who are not currently enrolled in any 
care-providing program or facility 
including day care except on days not 
enrolled in day care . A determination 
of need for a home delivered meal must 
be made by conducting an initial 
in-home assessment and subsequent 
periodic re-evaluation of need. 

The minimum criteria for determination 

of need are that the participant shall: 

ft-) be unable to leave home except for 

medical or health related reasons; and 

fi+^ — have no one in the home able to 
prepare a nutritiou s meal on a regular 
basis. 
Packaging and Packing Standards 
All meals packaged at nutrition sites 
shall be individually packaged first 
(before congregate meals are served) 
and packed in secondary insulated food 
carriers with tight fitting lids and 
transported immediately. 
All meals packaged at food preparation 
centers shall be individually packaged 
and packed in secondary insulated food 
carriers with tight fitting lids and 
transported immediately. 
Only aluminum foil or styrofoam 
divided containers shall be used for hot 
food. The lids shall provide an air 
tight seal. Bread shall not be placed on 
top of other food. 

Cold and hot food shall be packaged 
and packed separately. 
Appropriate individual containers with 
tight fitting lids shall be used for all 
cold food, "sandwich" type bags which 
can be sealed may be used for bread. 
Temperature checks shall be made at 
least three time s one time per month on 
each route to document that food 
temperatures meet the RULES 
GOVERNING THE SANITATION OF 
RESTAURANTS AND OTHER FOOD 
HANDLING ESTABLISHMENTS, 
pursuant to 10 NCAC lOA .0 4 87 15A 
NCAC 18A .2600 . 

All food delivery carriers shall meet 
NSF s tandard s must be safe for food 
contact and must be sanitized daily by 
the food service provider. 
Meal Standards 
All home-delivered meals shall meet 
one-third of the current daily 



recommended dietary allowances as 
established by the Food and Nutrition 
Board of the National Academy of 
Sciences - National Research Council 
and the Division of Aging meal pattern 
requirements. 

(b) All menus shall be written for a 
minimum of twenty days and shall be 
reviewed by a qualified licensed 
nutritionist/ dietitian to assure the menus 
provide one-third RDA. 

(c) All regular menus reviewed by the local 
dietitian shall be submitted to the 
Division of Aging nutritionist/dietitian 
for review and approval at least ©fie 
month two weeks prior to use. 

(d) The approved menus shall be on file, 
with any changes in writing, for at least 
one year at the contract level by the 
service provider . 

(e) At least one hot^ or cold nutritious meal 
shall be provided daily at least five 
days a week. Frozen, canned, 
dehydrated, or nutritional supplement 
products may also be used for 
emergency situations and additional or 
weekend meals. All frozen meals shall 
be dated with the deliven,' dates. Only 
one hot meal may be delivered per day. 
In emergency situations, such a s under 
s evere — weather — conditions, — &f — fef 
weekends — when — needed, — it — shall — be 
permissible to leave special meal s or 
food — s tuff s — fef — a — nutrition — service 

participant, provided that prop>cr 

storage — and — heating — facilities — afe 
available — ifi — the — home. — &ft4 — the 
participant is able to consume the meal 
either — by — himself or — with — available 
assistance. 

(4) Therapeutic Clinical Diet Standards 

(a) Prior to serving a therapeutic clinical 
diet, a physician's written prescription 
using the current North Carolina 
Dietetic Association Diet Manual shall 
be on file with the nutrition service 
provider. 

(b) Each therapeutic diet prescription shall 
be re-ordered in writing by the 
physician every six months. Menus for 
each type of therapeutic diet must be 
written by a regi s tered licensed 
nutritionist/ dietitian for a — four week 
period and shall be completed at lea s t 
one month prior to use . Menus for the 



818 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



PROPOSED RULES 



te^ 



(5) 
(a) 



therapeutic clinical diets shall follow 
the standard set forth in the North 
Carolina Dietetic Association Diet 
Manual. These menus shall remain on 
file for at least one year at the contract 
level. 

— The preparation of all therapeutic diet 
food shall be under the supervision of a 
registered dietitian. 
Delivery Standards 
Each delivery route shall be clearly 
established in writing. 

— Ne — mor e — thafi — 1-8 — meals — shaH — be 



delivered — m — ©fte — ifvp — unless — feed 
carriers can be heated and refrigerated 
tfl — the — vehicle — m — which — tteey — are 
transported. 

(b) fe) No more than one hour two hours 
shall elapse between the time of 
delivery to the drop off points and the 
time of delivery of the last meal on the 
route. 

fd) Meal s s hall be delivered in the order in 

which they are packed. (Volunteers 

must not open carrier and rearrange the 
meals.) 

(c) -fe) Each meal shall be received at the 
participant's home by an individual. 

^#) Titl e III will only pay for volunteer 

mileage at the applicable rate for home 
delivered meals. 

Statutory Authority G.S. 143B-18]. 1 (c). 

.0510 FOOD PREPARATION 
REQUIREMENTS 

The Division of Aging requires all congregate 
and home delivered meal nutrition services 
providers to meet the following requirements, in 
addition to those specified in the federal 
regulations; 

(1) Food Preparation 

(a) State and local regulations applicable to 
the particular types of food preparation 
and meal delivery systems used by the 
project shall be adhered to in all stages 
of food service operations. 

(b) All staff working in the preparation of 
food shall be under the supervision of a 
person who shall insure the application 
of hygienic techniques and practices in 
food handling, preparation and service. 
This supervisory person shall consult 
with the nutrition service provider's 
dietitian for advice and consultation as 



necessary. 

(c) Tested quality recipes, adjusted to yield 
the number of servings needed, shall be 
used to achieve the consistent and 
desirable quality and quantity of meals. 

(d) All foods shall be prepared and served 
in a manner to present optimum flavor 
and appearance, while retaining 
nutrients and food value. 

(2) Food Safety 

(a) Menus shall be: 

(i) Planned in advance for a minimum of 
four weeks 20 days in a clearly 
written format provided — by — the 
Division of Aging . Menus shall be 
identified as nutrition project menus; 
(ii) Certified in writing as providing 
one-third of the current 
Recommended Dietary Allowance as 
established by the Food and Nutrition 
Board of the National Academy of 
Sciences, National Research Council. 
based on current food composition 
tables by the dietitian/nutritionist 
whose services are utilized by the 
project; 
ft«) — Reviewed by the Division of Aging at 
l e a s t — twe — week s — prior — to — use — fef 
nutritional adequacy; 
(iii) iWj Posted with serving dates 
indicated in a conspicuous location in 
each congregate meal site as well as 
each preparation area; and 
(iv) {¥j Adhered to, subject to seasonable 
availability of food items as well as 
availability of USDA donated food. 

{¥) Each — meal — served — by — the — nutrition 

services provider shall contain at l e a s t 
one third of the current Recommended 
Dietary Allowance as establi s hed by the 
Food — and — Nutrition — Board — &f — the 
National Academy of Sciences National 
Re s earch Council. 

(b) {ej Menu plans shall reflect the use of 
seasonal fresh fruits and vegetables. 

^d) Service provider s s hall use the menu 

pattern prescribed by the Division of 
Aging. 

(c) All food shall be packaged and 
transported in a manner to protect 
against potential contamination 
including dust, insects, rodents, unclean 
equipment and utensils, and 
unnecessary handling. Packaging and 
transport equipment must maintain 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



819 



PROPOSED RULES 



M) 



M 



m 



is) 

(h) 

m 



ik] 

m 



appropriate food temperatures. Records 
of aU temperature checks shall be kept 
on file for audit by the service 
provider. 

The holding time between the 
completion of cooking at the 
commissary or kitchen and delivery of 
food to the nutrition site shall not 
exceed three hours. 



(m) 



Single service disposable items 

including plastic gloves, utensils, and 

tableware shall be used one time only 

and then discarded. 

Food left after everyone has been 

served may be served as seconds to 

congregate participants. Food served in 

this manner may not be reported as 

additional participant meals served. 

All food which has been served and not 

eaten shall be discarded. 

Nutrition service providers shall 

educate participants and all staff 

regarding the sources and prevention of 

foodbome illness. 

All food served must be prepared in a 

Grade A kitchen. All food used must 

meet standards of quality, sanitation. 

and safety applying to foods that are 

processed m a commercially licensed 

establishment. 

Food prepared, frozen, or canned in the 

home shall not be served at the site. 

Food from unlabeled, rusty, leaking, or 

broken containers or cans with side 

dents, rim dents, or swells shall not be 

used. 

All meat and poultry' . fresh or frozen. 

used in the meals must be inspected by 

USDA or State officials, from Federally 

or State inspected plants, and must bear 

inspection stamps on the box or 

package. 

All foods used in the meals must be 

from approved sources; be in 

compliance with applicable state and 

local laws, ordinances, and regulations; 

and be clean, wholesome, free from 

spoilage, free from adulteration and 

mislabeling, and safe for human 

consumption. 

Fresh raw fish must bear the PUFl 

(Packed Under Federal Inspection) 

Shield. 

Fresh fruits and vegetables of good 

quality may be donated and 



ill 



is] 



incorporated into their menu only when 
they can be used to serve all 
participants. 



Prior to use, all fruits and 



vegetables shall be washed to remove 
dirt or insecticide residues. 

(n) Staff preparing and serving food must 
use good hygiene techniques and 
practices in aU handling of the food. 

(o) All hot food must be maintained at 140 
degrees Fahrenheit or above throughout 
all processes from cooking to serving, 
and all cold food must be maintained at 
45 degrees Fahrenheit or below during 
all processing through serving. 

(p) Each congregate nutrition provider must 
abide by food safety and sanitation 
practices required in "Rules Governing 
the Sanitation of Restaurants and Other 
Food Handling Establishments" ( 15A 
NCAC ISA .2600) and other applicable 
state and local ordinances and 
regulations. 

(q) All material used in food delivery 
carriers must be guaranteed to be safe 
for food contact. All carriers must be 
sanitized daily by the food service 
caterer. 

Food temperatures must be taken and 
recorded when food arrives at the 
nutrition site and again immediately 
before serving. Food temperatures 
shall be recorded by the name of each 
specific food item. All temperature 
records must be maintained until 
audited. 



The nutrition site must be left clean 
daily. 



Statutory Authorit}- G.S. 143B-181 .1 (c). 

. 05 1 1 STAFFING REQUIREMENTS 

The following staffing requirements shall apply 
to all nutrition s ervice contract s for fiscal year 
1981 and thereafter. 
{^ Contracts serving 99 meals per day — up 

te — 3 — hours — per — day — fef — contract 

management; 
t3) Contracts with — 100 225 meals p>cr day 

and at least 3 sites — up to 4 hours per 

day for contract management; and 
{i) Contracts with more than 225 meals or 

more than 4 sites — up to 8 hour s per day 

for contract management. 

Authoritx G.S. 143B-10: I43B-138: 45 C.F.R., 



820 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



PROPOSED RULES 



Chapter XIII. Part 1321. 

.0512 MENU PLANNING REQUIREMENTS 

(a) Each meal served shall contain at least one- 
third of the current daily Recommended Dietary 
Allowances as established by the Food and 
Nutrition Board, National Academy of Science ^i 
National Research County (Tenth Edition). 

(b) Agencies providing congregate nutrition 
services must use and follow the "Menu Pattern" 
in this Paragraph: 

(1 ) Each day's menu must meet one-third 
of the daily Recommended Dietary 
Allowances. 

(2) All foods must be identified on the 
menu [n order to calculate nutrient 
value. 

(c) All meals must meet the following 
specifications: Calorie content must be a 
minimum of 700 calories per day. The fat content 
should be no more than 40% of total calories. The 
sodium content of the meal should fall within the 
range of three grams of sodium chloride per day 
or 1 ,000 milligrams sodium. One meal p er 20 day 
cycle may exceed 1 ,000 milligrams sodium. 

(d) Each category of the "Menu Pattern " 
outlined in this Paragraph must be served to each 
participant. 

(I ) Protein Category 

(A) The total protein content of each meal 
must be no less than 21 grams. Of 
this, 14 grams must be a "complete 
protein" in the form of 2 oz^ edible 
meat, fish or poultry, exclusive of fat, 
bone, or gristle. One-half cup cooked 
drained dried beans, peas or lentils 
may be used as a substitute for i oz. 
of meat. One cup of dried beans may 
be used twice in one 20 day cycle as 
a substitute for 2 oz^ meat; however, 
a "complementary" protein source 
must be served at the same meal with 
the one cup dried beans m order to 
serve a complete protein (i.e.. rice, 
corn, or cornbread). Other protein 
sources such as one egg or two 
tablespoons peanut butter may also be 
substituted for X oz^ meat. 

(B) Ground meat may be used in entrees 
no more than twice in one week. 



whole grain or enriched grain product. 

(3) Vegetable/Fruit Category 

(A) Elach meal must contain two servings 
of different fruits and/or vegetables. 
When salad is served, it must be 
placed in a separate compartment of a 
compartmental tray to avoid mixing 
with other foods or served in a 
separate salad bowl. 

(B) One serving of vitamin C-rich cold 
food must be served twice per week. 

(4) Fat Category. One teaspoon of butter 
or fortified margarine in an individual 
covered package chip or container may 
be used if it adds palatability to the 
menu. The menu must identify whether 
margarine or butter js used when 
served. 

(5) Calcium-Rich Food Category. Each 
meal must contain a total of no less 
than 270 mg. calcium. This may be 



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Casseroles or other mixed dishes must 

have ingredients specified on the 

menu to facilitate nutrient analysis. 

Complex Carbohydrate Category. Each 

meal must contain two servings of a 



obtained by one serving of 8 oz^ of 
whole, low fat, skim, buttermilk, 
chocolate (not chocolate drink), sweet 
acidophilus milk, or Ultra High 
Temperature (UHT) milk, fortified with 
vitamins A & D in an individually 
sealed carton, or other foods high in 
calcium. 
(6) Special Requirements 

(A) Recipes for all foods used in 
combination must be supplied to 
facilitate nutrient analysis to the 
person responsible for certifying the 
menu. When recipe ingredients are 
changed, the recipe must be re- 
submitted for approval. 

(B) All prepared or breaded meat items or 
meat in combination must be specified 
on the menu. The bidder receiving 
the food bid must obtain and submit a 
Certificate of Compliance from the 
manufacturer for each item to be 
included on the meat category. Only 
approved brands may be used m the 
meat category. 

(C) The form of vegetable or fruit used 
(fresh, frozen, dried, or canned) must 
be indicated on the menu for nutrient 
analysis. 

(D) Vegetable protein products are 
allowed by the Food and Nutrition 
Service (FNS), USDA, to be used in 
meat mixtures ug to a maximum of 
30%. Seventy percent of the 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



821 



PROPOSED RULES 



ingredients in the meat mixture must 
be meat. 
(E) Vegetable protein extended products 
may be used one time per week and 
must be noted on the menu. A copy 
of the Certificate of Compliance shall 
be filed with the menus. 

Suiturory- Authorin G.S. 1438-181. ](c). 

.0513 ELIGIBILITY' FOR SER\1CE 

(a) Congregate Nutrition Program 

( 1 ) Target Population 

(A) Congregate nutrition services shall be 
available to persons 60 years of age 
and older and their spouses, 
regardless of age. Spouses under the 
age of 60 are eligible for ser\'ices 
when the person 60 and over is 
receiving nutrition services. 

(B) Area Agencies on Aging shall 
establish clear, written procedures that 
will also allow congregate nutrition 
programs the option to offer a meal, 
on the same basis as meals are 
provided to persons 60 years of age 
and older, to indi\'iduals providing 
volunteer services during the meal 
hours and to individuals with 
handicaps or disabilities v.'ho ha\'e not 
attained 60 years of age but who 
reside with an eligible older adult or 
reside in housing facilities occupied 
primarily by the elderly at which 
congregate nutrition services are 
provided. Disability status shall be 
verified by reviewing a notice of 
disability benefit award. Nutrition 
ser\'ice pro\iders are required to 
maintain a current copy of the notice 
of benefit award for each person 
served. 

(2) Service Priority. Priority shall be 
gisen to serving: 

(A) Individuals who have been abused. 



exploited as 
the county 
department of social ser\'ices and for 
whom the service is needed as part of 



iB] 



neglected. and/or 
substantiated by 



the adult protecti\'e services plan; 
Indi\iduals who are at risk of abuse, 
neglect, or exploitation: 
Individuals uho are health impaired 
and who are jn need of nutritional 
supports, or those older persons 



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whose independent living 
arrangements do not provide adequate 
facilities for meal preparation. 
Ineligible Persons 
Eligibility for the service is restricted 
to those persons whose dietary needs 
can be met by the meals available 
through the program as outlined in 
Rule .0512 of this Section. 



IB] 



Persons residing in long term care 

facilities and persons enrolled m a 

care-providing program or a facility. 

including an adult day care or adult 

day health care program in which a 

meal is provided, are not eligible. 

Persons v^'ho meet eligibility criteria 

who are enrolled in care providing 

programs including adult day care or 

adult day health care programs are 

eligible to receive congregate meals 

on the days they do not participate in 

such programs. 

(b| Home Delivered Meals 

(1 ) Target Population. The target 

population for home delivered meals is 

persons 60 years of age and older who 

are physically or mentally unable to 

obtain food or prepare meals, who have 

no responsible person who js able and 

willing to perform this needed ser\'ice. 

and who are unable to participate in the 

congregate nutrition program because 

of physical or mental impairment. The 

spouse of an eligible older person is 

also eligible to receive a home 

delivered meal. 



Area Agencies on Aging shall also 
establish procedures that will allow 
home delivered meals programs the 
option to offer a meal, on the same 
basis as meals are provided to persons 
60 years of age and older, to 



individuals providing volunteer services 
during the meal hours and to 
indi\iduals with disabilities who reside 
at home with an eligible older adult. 
Disability status should be verified by 
reviewing a notice of disability benefit 
award . 

In those special instances where a 
family caregiver is caring for an 
eligible homebound older person, the 
family caregi\'er is also eligible to 
receive a meal. 



c 



(2) Service Priority. Priority shall be 



822 



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NORTH CAROLINA REGISTER 



August 16, 1993 



PROPOSED RULES 



(A) 



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given to serving: 
Individuals who have been abused, 
neglected, and/or exploited as 
substantiated by the county 
department of social services and for 
whom the service is needed as part of 
the adult protective service plan; 
Individuals who are at risk of abuse, 
neglect, or exploitation; 
Individuals who do not have a 
caregiver or another responsible party 
available to assist with care; and 
Individuals who experience 
impairment in performance of 
activities of daily living (ADL) and 
instrumental activities of daily living 
(lADL). 
Ineligible Persons. Eligibility for the 
service \s restricted to those persons 
whose dietary needs can be met by 
home delivered meals available through 
the program as outlined in Rule .0512 
of this Section. 

Persons residing in long term care 
facilities and persons enrolled in a care- 
providing program or a facility, 
including an adult day care or adult day 
health care program in which a meal is 
provided, are not eligible. Persons who 
meet eligibility criteria who are 
enrolled in care providing programs or 
adult day care or adult day health care 



programs are eligible to receive home 
delivered meals on the days they do not 
participate in such programs. 

Statutory Authority G.S. 143B-181 .1(c). 

.0514 ADMINISTRATION REQUIREMENTS 

Agencies providing Congregate and Home 
Delivered Meal nutrition services shall: 



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Apply for authorization to accept food 
stamps as contributions at the nearest 
Field Office of the Food and Nutrition 
Service, USDA. 



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(4} 



Assure that all provisions relating to the 

use and handling of USDA issued food 

stamps as prescribed by federal , state, 

and local agencies responsible for 

administering the food stamp program are 

met. 

Develop a plan to recruit, orient, train, 

and recognize volunteers. 

Provide orientation and training for staff 

which shall include at a minimum the 



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following: 
Nutrition 



Program Directors: 



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(5) 



(6} 

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(d) 

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administration procedures. record 

keeping systems, reporting, food safety. 

food service. 

Site Manager: (for Congregate 

Nutrition Sites) site operations, site 

records, community resources and 

methods of referrals, food safety, and 

food portioning. 

Volunteers: site procedures, 

orientation, and training for specific 

volunteer activities. 



All staff: aging process, fire/disaster 

evacuation, and training required for 

specific staff categories provided by the 

Division of Aging and/or Area Agency 

on Aging. 
Provide all staff (both paid and volunteer) 
with written information on personnel 
policies which shall include: job 
descriptions; policies on fringe benefits, 
vacations, holiday and sick leave, outside 
employment; grievance procedures and 
termination; hours, compensation and 
travel allowance; probation and 
promotion; procedures and timetable for 
performance evaluations; and training 
requirements. 

Maintain adequate records documenting 
service activities which shall include: 

Client registration forms. 

Unit of service records. 

Service cost sharing records . 

Diet prescriptions for each clinical diet 

served. 

Meal delivery tickets. 

Employment records including 

affirmative action efforts and results. 



Maintain separate records to document 

USDA cash used to purchase: 
United States Department of 
Agricultural commodities and other 
foods used jn the food service. 
Food in meals provided under contract 
arrangements with food management 
companies, caterers, restaurants, or 
schools. Each meal must contain 
United States produced commodities or 
other foods at least equal in value to the 
USDA per meal cash entitlement. 

Submit required records and reports on a 

current and timely basis. 

Conduct, at least once a year, a 

reassessment of each participant for 



8:10 



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August 16, 1993 



823 



PROPOSED RULES 



Congregate Nutrition program 
participants. 
10) Conduct a written assessment of each 
participant every six months except those 
on temporary home delivered meal status 
for Home Delivered Meals program. 
Maintain confidentiality of all participant 
records. 

Use donated foods to the maximum 
extent feasible and comply with all 
USDA regulations related to donated 
food and cash reimbursement. 

(13) Prepare a participant in-home assessment 
in writing within seven working days of 
acceptance of referral. 

( 14) Notify a participant in writing of his/her 
eligibility or ineligibility for home 
delivered meals within 10 working days 
of assessment. 

(15) Establish in writing the area to be served 
by the Home Delivered Meals program. 

( 16) Ensure that each home delivered meal 
route js no longer than one hour, and 
ensure that no more than two hours 
elapse between the delivery of the food at 
the drop-off site and delivery of the meal 
to the home of home-bound older person. 

( 17) Establish written agency procedures for 
reporting changes in participant 
eligibility. 

Sraruron- Aiirhorin- G.S. M3B-181. 1(c). 



(5) Meals cannot be provided to residents 
of long term care facilities, guests, 
ineligible handicapped persons under 
age 60. adult day care or adult day 
health care participants, and paid staff 
under age 60 without reimbursement of 
the full unit cost. Participants in adult 
day care or adult day health care pro- 
grams are eligible for nutrition services 
on the days they do not attend day care 
or day health care programs. 

(6) Special diets may not be served unless 
a physician's order is on file, there are 
sufficient numbers of special diets 
required so as to justify the meals, and 
the nutrition program has the capability 
to provide the service. 

(7) Except on an emergency basis, nutrition 
site(s) shall not be closed or combined 
on a temporary or permanent basis 
uithout the prior written approval of 
the Area Agency on Aging Administra- 
tor. 

Statutory Authoriry G.S. 143B-1S1. 1(c). 

SUBCHAPTER 22S - PLANNING ANT) 

SER\TCE AREA ANT) AREA AGENCY 

DESIGNATION 

SECTION .0100 - DIVISION OF 
AGING DESIGNATION AUTHORITY' 



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.0515 PROHIBITED ACTIVITIES 

(a) funds shall not be used to: 
( 1 ) Reimburse mileage for staff delivering 
home delivered meals to participants; 
Purchase vehicles to deliver home 



12) 
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delivered meals to participants; 
Pay for staff or volunteer time to 
deliver home delivered meals to 
participants, 
(b) Prohibited service activities: 
(1 ) Medical treatment or medication shall 



12) 

13] 
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not be provided or administered by 

program staff or \'olunteers. 

Financial transactions except those 

related to service cost sharing shall not 

be carried out by program staff or 

volunteers. 

UnapproNed meals may not be provided 

to participants. 

Gifts from participants may not be 

accepted by program staff or 

volunteers. 



.0101 PLANNING AND SERVICE 

AREA AND AREA AGENCIES 
ON AGING 

The Division of Aging shall divide the state into 
distinct planning and service areas and designate 
an area agency on aging within each planning and 
service area. 

Authorit}- G.S. 143B-181.1(c): 42 U.S.C. 3001: 
E.x. Order 25. February 21. 1986. 

.0102 WITHDRAWAL OF AREA 
ON AGING DESIGNATION 

Area agency designation may be withdrawn 
whene\er. after reasonable notice and opportunity 
for a hearing, it is determined that: 

(1) An area agency fails to perform mandat- 
ed functions; or 

(2) An area plan or plan amendment is not 
approved; or 

(3) There js substantial failure in the provi- 
sions or administration of an appro\'ed 



824 



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NORTH CAROLINA REGISTER 



August 16, 1993 



PROPOSED RULES 



area plan to comply with any provision 
of the Older Americans Act, federal 
regulations, or policies and procedures 
outlined by the Division; or 
(4) Activities of the area agency are 
inconsistent with the statutory mission 
prescribed in the Act or conflict with the 
requirement in the Act that it function 
only as an area agency on aging. 

Authority G.S. 143B-181.1 (c); 45 C.F.R. Part 
132. 

SECTION .0200 - PLANMNG AND 

SERVICE AREA AND AREA 

AGENCY ON AGING REQUIREMENTS 

.0201 PLANNING AND SERVICE 
AREA REQUIREMENTS 

(a) A PSA designated after March 1. 1993 shall 
have a general population of at least 100.000 . 

(b) PSAs shall contain more than one county 
and shall be inclusive of all municipalities within 
the proposed PSA boundary . 

(c) PSA designation shall be effective on July 1 . 

Authority- G.S. 143B-I81. 1(c): 42 U.S.C. 3001: 
E.X. Order 25. February 21. 1986. 

.0202 AREA AGENCY ON AGING 
REQUIREMENTS 

(a) A public or private nonprofit agency or 
organization shall be designated as an area agency 
on aging by the Division of Aging to serve each 
planning and service area m the state. 

(b) Area agencies on aging shall provide a 
regional ombudsman program. 

(c) Area agency on aging designation shall be 
effective July J^ 

Authority G.S. 143B-181 . 1 (c): 143B. Article 3. 
Part 14D: 45 C.F.R. Part 1321: 42 U.S.C. 3001. 

SECTION .0300 - APPLICATION FOR 

PLANNING SERVICE AREA 

DESIGNATION AND PREHEARING 

REVIEW 

.0301 APPLICATION FOR PLANNING 
AND SERVICE AREA 
DESIGNATION DUE DATE 

The application for planning and service area 
designation shall be received by the Division of 
Aging no later than August J^ 



Authority G.S. 143B-18] . 1 (c); 42 U.S.C. 3001: 
Ex. Order 25, February 21, 1986. 

.0302 APPLICATION FOR PLANNING 
AND SERVICE AREA 
DESIGNATION CONTENT 

The application shall provide the following: 
(1) Listing of proposed PSA counties and a 
signed resolution from the Chairman of 
the Board of Commissioners in each 
county endorsing the proposed PSA, 
supporting the proposed area agency on 
aging arrangement and certifying the 
availability of local match for AAA 
federal/state funding. 
Identification of the unit of local 



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government, regional planning authority. 
or Indian reservations responsible for 
developing the application and individual 
responsible for coordinating application 
with the Division. 

Narrative discussion which states the 
necessity of the designation and describes 
benefits to identified counties. 



Authority G.S. 143B-181. 1(c): 42 U.S.C. 3001: 
E.X. Order 25. February 21, 1986. 

.0303 PRE-HEARING REVIEW ON 
PLANNING AND SERVICE 
AREA DESIGNATION 

(a) The Division shall provide a copy of the 
designation application, relevant demographic and 
funding data and other pertinent information to 
area agencies whose PSA boundaries would be 
affected within 10 working days of receipt of the 
application. Area agencies shall have the 
opportunity to comment on the application prior to 
public hearings on PSA designation. 

(b) Prior to conducting public hearings on PSA 
designation the Division shall provide aging 
interests in each county of PSAs affected by the 
application with a copy of the application, other 
information, and data deemed appropriate by the 
Division. Local aging interests shall have the 
opportunity to provide written comments to the 
Division prior to public hearings. Local aging 
interests shall include the following: 

(1) boards of county commissioners; 

(2) county managers; 

(3) area agency advisory councils; 

(4) funded and non-funded aging service 
providers; 

(5) long term care providers and advocacy 
groups; 



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August 16, 1993 



825 



PROPOSED RULES 



i6] 
ill 



m 



senior centers; 

local Alzheimer's support organizations 

and other advocates for older persons 

and caregivers; 

Lead Regional Organization directors; 

Joint Regional Forum. 



Authority G.S. J43B-181 . 1 (c): 42 U.S.C. 3001; 
Ex. Order 25. February 21, 1986. 

SECTION .0400 - DIVISION OF AGING 

PUBLIC HEARINGS ON PLANING 
AND SERVICE AREA DESIGNATION 

.0401 SCHEDULING OF PUBLIC 
HEARINGS ON PLANNING/ 
SERVICE AREA DESIGNATION 

Prior to designating PSAs, public hearings shall 
be held for affected parties. The Division shall 
schedule hearings in locations which are 
convenient to each county in affected PSAs so as 
to encourage full participation by county and 
regional aging interests. Within no less than 15 
days prior to the scheduled hearing, the aging 
interests, as specified in Rule .0303 of this 
Subchapter, shall be notified in writing with 
regards to the date, time and location of the public 
hearing. 

Authority G.S. 143B-181 .1 U): 42 U.S.C. 3001; 
E.x. Order Number 25. February 21. 1986. 

.0402 PREHEARING REVIEW 
COMMENTS 

The Division shall provide a written summary of 
comments received through the pre-hearing review 
at the public hearing. 

Authority G.S. 143B-18L 1(c); 42 U.S.C. 3001; 
Ex. Order 25, February 21, 1986. 

.0403 NOTIFICATION OF DECISION 
ON PLANNING AND SERVICE 
AREA DESIGNATION 

Comments received through the pre-hearing 
review and public hearings shall be considered in 
reaching a PSA designation decision. Upon 
consultation with the Department of Human 
Resources and others, as deemed appropriate, the 
Division will issue a decision and notif\' affected 
area agencies and aging interests specified in Rule 
.0303 of this Subchapter in writing. The Division 
will provide the Administration on Aging with 
written notification of designation decisions. 



Authority G.S. 1438-181 . 1(c); 42 U.S.C. 3001; 
Ex. Order 25, February 21, 1986. 

.0404 PLANNING/SERVICE AREA 
DESIGNATION INITIATED 
BY THE DIVISION OF AGING 

If PSA designation is initiated by the Division. 
the Division shall provide for pre-hearing reviews 
and public hearings by distributing a plan for 
proposed PSA designation and other pertinent 
information and data to affected area agencies and 
local aging interests specified in Rule .0303 of this 
Subchapter and scheduling public hearings as 
specified in Rule .0401 of this Subchapter. PSA 
designation will be initiated by the Division if: 

(1 ) With input from the Department of 
Human Resources and others, the 
Division determines that reconfiguration 
of PSAs is necessary for the State and 
area agencies to effectively carry out 
responsibilities mandated through the 
Older Americans Act. 

(2) A county or counties in a PSA affected 
by withdrawal of AAA designation 
propose to join another PSA, as discussed 
in Rule .0706 of this Subchapter. 

Authority G.S. 143B-181 . 1 (c); 42 U.S.C. 3001; 
Ex. Order 25. February 21. 1986. 

SECTION .0500 - APPLICATION FOR 

AREA AGENCY ON AGING DESIGNATION 

AND PREHEARING REVIEW 

.0501 AREA AGENCY ON AGING 
DESIGNATION CRITERIA 

(a) Area agency on aging designation shall occur 
after the Division has issued a decision on PSA 
designation, as specified in Rule .0403 of this 
Subchapter. 

(b) The unit of general purpose local 
government, regional planning authority or Indian 
reservation responsible for development of the 
PSA designation application shall be responsible 
for completing the application for area agency on 
aging structure and submitting it to the Division 
within a specified timeframe. 

(c) If PSA designation is initiated by the 
Division of Aging, the Division shall receive input 
from the chairman of the board of commissioners 
in each county of the PSA prior to designating an 
area agency on aging. 

Statutory Authority G. S. 143B-181. 1 (c); 42 U. S. C. 
3001. 



c 



826 



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NORTH CAROLINA REGISTER 



August 16, 1993 



PROPOSED RULES 



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.0502 



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APPLICATION FOR AREA 
AGENCY ON AGING 
DESIGNATION CONTENT 

Division of Aging will provide a format 
addresses the following: 

Name of proposed area agency 
organization, if possible. 
Description of area agency methodology, 
including staffing responsibilities, to meet 
federal and state requirements which 
include the following: 
Working with elected officials to 
establish one or more focal points on 
aging in each county. 
Establishing an area agency advisory 
council for the purpose of carrying out 
advisory functions which further the 
area agency's mission of developing 
and coordinating a community-based 
services system for all older adults [n 
the PSA- 
Developing an area plan following 
procedures specified by the Division of 
Aging and conducting a public 
hearing(s) on the plan prior to 
submission to the Division. 
Serving as a public advocate for the 
development or enhancement of 
community based service systems 
through the coordination of plans and 
activities with public and private 
agencies and organizations and 
providing leadership in assisting 
counties in the targeting of resources to 
meet the needs of older adults with the 
greatest economic or social needs, with 
particular attention to low income 
minorities. 
(e) Monitoring community service 
providers as specified in the Home and 
Community Care Block Grant County 
agreement assessment format. 
Providing Home and Community Care 
Block Grant management information 
system and services reimbursement 
functions as specified in the Home and 
Community Care Block Grant Manual 
for Community Service Providers. 
Administering a regional ombudsman 
program, as required in G.S. 143B. 
Part I4D. The proposal shall describe 
how functions specified iji G.S. 143B- 
181.19 will be carried out. 
Organization chart indicating that the area 
agency shall function only to administer 



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programs for older persons. 
(4) Proposed line item or total project budget 
for the area agency which includes 
identification of funding sources to 
support the budget. 

Authority G.S. I43B-181. 1(c); 45 C.F.R. Part 
1321: 42 U.S.C. 3001. 

.0503 PRE-HEARING REVIEW ON 
AREA AGENCY ON AGING 
DESIGNATION 

Within no less than 15 days prior to conducting 
public hearing on AAA designation, the Division 
shall provide area agencies on aging and local 
aging interests who are affected by the PSA 
designation decision with a copy of the proposed 
area agency structure format. These area agencies 
and local aging interests shall have the opportunity 
to comment on the proposed structure prior to 
public hearings. Local aging interests are 
identified jn Rule .0303 of this Subchapter. 

Statutory Authority G. S. I43B-181. 1 (c): 42 U. S. C. 
3001. 

SECTION .0600 - DIVISION OF AGING 

PUBLIC HEARINGS ON AREA 
AGENCY ON AGING DESIGNATION 

.0601 SCHEDULING OF PUBLIC 

HEARINGS ON AREA AGENCY 
ON AGING DESIGNATION 

Prior to designating AAAs, the Division shall 
conduct public hearings. The Division shall 
schedule hearings which are convenient to each 
county in affected PSAs. Within no less than 15 
days prior to the scheduled hearing, the aging 
interests, as specified jn Rule .0303 of this 
Subchapter, shall be notified in writing with 
regards to the date, time and location of the public 
hearing. 

Statutory Authority G.S. 143B-181. 1 (c); 42 
U.S.C. 3001. 

.0602 PRES/ COMMENTS RECVD/AREA 
AGENCY/ AGING DESIGNATION/ 
PREHEARING REVIEW 

The Division shall provide a written summary of 
comments received through the pre-hearing review 
at the public hearings. 

Statutory Authority G.S. 1438-181. 1 (c): 42 U.S.C. 
3001. 



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NORTH CAROLINA REGISTER 



August 16, 1993 



827 



PROPOSED RULES 



.0603 NOTIFICATION OF DECISION 
ON AREA AGENCY ON AGING 
DESIGNATION 

Comments received through the pre-hearing 
review and public hearings shall be considered in 
reaching an AAA designation decision. Upon 
consultation with the Department of Human 
Resources and others, as deemed appropriate, the 
Division will issue a decision and notify affected 
area agencies and aging interests listed in Rule 
.0303 of this Subchapter. 

Statutory Authority G.S. 143B-181 .1 (c); 42 U.S.C. 
3001. 

SECTION .0700 - WITHHOLDING AREA 

FUNDS OR WITHDRAWING AREA 

AGENCY ON AGING DESIGNATION 

.0701 NOTIFICATION OF IMPENDING 
ACTION TO WITHHOLD AREA 
FUNDS 

Within no less than 15 days prior to withholding 
funds the Division of Aging shall provide the area 
agency notification of the impending action via 
certified mail. The notification shall contain the 
following: 

(1) Reasons for initiating the withholding of 
funds . 

(2) Date that funds will be withheld, pending 
request for public hearing . 

(3) Opportunity for requesting, in writing, a 
public hearing concerning the impending 
action. Such request shall be within five 
days of receiving the notice . 

Statutory Authority G. S. 143B-18I. 1 (c); 42 U. S. C. 
3001. 

.0702 PUBLIC HEARING/WITHHOLDING 
AREA FU'NDS 

If the area agency requests a hearing, the 
Division shall, within 10 days of receipt of the 
request, schedule a public hearing in the affected 
PSA and notify the area agency on aging and local 
aging interests specified m Rule .0303 of this 
Subchapter. 

Statutory Authority G.S. 143B-181. 1 (c): 42 U.S.C. 
3001. 

.0703 NOTIFICATION OF DECISION 

ON WITHHOLDING AREA FUNDS 

Comments received through any public hearing 
shall be considered by the Division in reaching a 



final decision. An area agency may appeal the 
Division's decision to withhold funding as 
specified in Rule .0801 of this Subchapter. 



Statutory Authority G.S. 143B-181 .1(c); 42 U.S.C. 
3001. 

.0704 NOTICE/IMPENDEVG ACTION/ 
WITHDRAWING AREA AGENCY 
DESIGNATION 

An area agency shall be notified no less than 30 
days prior to withdrawing area agency designation 
via certified mail. 

Statutory Authority G. S. 143B-181. 1 (c): 42 U. S. C. 
3001. 

.0705 PUBLIC HEARING/WITHDRAWAL 
OF AREA AGENCY ON AGING 
DESIGNATION 

Upon determination of cause for withdrawing 
area agency on aging designation, a public hearing 
shall be scheduled and conducted within the 
planning and service area of the area agency on 
aging. Within no less than 15 days prior to the 
scheduled hearing, the aging interests, as specified 
in Rule .0303 of this Subchapter, shall be notified 
in writing with regards to the date, time, and place 
of the public hearing. 

Statutory Authority G. S. 143B-181. 1 (c): 42 U. S. C. 
3001. 

.0706 NOTIFICATION OF DECISION 

TO WITHDRAW AREA AGENCY 
DESIGNATION 

(a) Comments received through the public 
hearing shall be considered in reaching a decision. 
Upon consultation with the Department of Human 
Resources and others, as deemed appropriate, the 
Division will issue a decision as to whether or not 
to withdraw AAA designation. The area agency 
on aging and local aging interests, as specified jn 
Rule .0303 in this Subchapter, shall be notified m 
writing of the Division's decision. An area agency 
may appeal the Division's decision to withdraw 
area agency on aging designation, as specified in 
Rule .0801 of this Subchapter. 

(b) If AAA designation js withdrawn, the 
Division shall meet with the chairman of the board 
of commissioners in each county of the PSA. 
Based upon the decision of the counties, the 
Division will initiate the designation of one or 
more PSAs or initiate the designation of an area 
agency on aging. 



e 



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NORTH CAROLINA REGISTER 



August 16, 1993 



PROPOSED RULES 



Statutory Authority G. S. 143B-181. 1 (c); 42 U. S. C. 
3001. 

SECTION .0800 - APPEAL OF 
DIVISION OF AGING DECISION 

.0801 CONTESTED CASE 

Area agencies whose funding has been withheld: 
area agencies whose designation has been 
withdrawn; area agencies whose PSA is affected 
by a designation decision; or the unit of general 
purpose local government whose application for 
PSA designation is disapproved by the Division of 
Aging may petition the Office of Administrative 
Hearings for a contested case hearing. Provisions 
for contested case hearings are specified in G.S. 
150B, Article 3. 

Statutory A uthority G. S. 1 43 B- 1 8 1.1 (c); 42 U. S. C. 
3001. 

.0802 APPEAL TO COMMISSIONER 
ON AGEVG 

The party whose application for PSA designation 
is disapproved and who is aggrieved by the final 
decision in a contested case may appeal the 
decision to the Commissioner on Aging within 30 
days following the receipt of the state's decision in 
lieu of filing a petition for judicial review in state 
superior court. 

Statutory Authority G. S. 1438-181. 1 (c): 42 U. S. C. 
3001. 

.0803 JUDICIAL REVIEW 

Area agencies whose funding has been withheld; 
whose designation has been withdrawn; or whose 
PSA is affected by a designation decision and are 
aggrieved by the final decision jn a contested case 
may file a petition for judicial review, as provided 
in G.S. 150B, Article 4. 

Statutory Authority G. S. 143B-181. 1 (c); 42 U. S. C. 
3001. 

TITLE 15A - DEPARTMENT OF ENVIRONMENT, HEALTH, AND 
NATURAL RESOURCES 

ISotice is hereby given in accordance with G.S. 150B-21.2 that the Environment, Heahh, and Natural 
Resources, Mining Commission intends to amend rule cited as ISA NCAC 5B .0003. 



1 he proposed effective date of this action is January 1 , 1994. 



8:10 NORTH CAROLINA REGISTER August 16, 1993 829 



PROPOSED RULES 



1 he public hearing will be conducted at 9:00 a.m. on September 10, 1993 at the Ground Floor Hearing 
Room. Archdale Building, Raleigh, NC. 

Ixeason for Proposed Action: To replace the existing Rule (5B .0002) to increase the amount of reclamation 
bonds for mining permits. 

(comment Procedures: Any person requiring information may contact Mr. Tracy E. Davis at Land Quality 
Section, P.O. Bo.x 27687, Raleigh, NC 27611-7687. telephone (919) 733-4574. Written comments must be 
submitted to the above address no later than September 16, 1993. Notice of an oral presentation should be 
given to the above address and telephone number. Persons who call in advance of the hearing will be given 
priority on the speaker's list. 

CHAPTER 5 - MINING: MINERAL 
RESOURCES 

SUBCHAPTER 5B - PERAHTTING 
ANT) REPORTEVG 



( 



.0003 BONDING REQUIREMENTS 

Anv operator desiring to engage in mining may request an application form from the Land Quality Sootion. 
Division of Land Resourees. Department of Environment. Health, and Natural Resources and shall submit the 
completed application to the Land Quality Section. 

Upon approval of the application, the department will set the amount of the perfonnancc bond and issue a 
bond form to be used in securing the bond. — The amount of the bond will be based upon the area of affected 
land and set according to the following requirements: 



TYPE MINE 



AFFECTED AREA/BOND AMOUNT 



L — Quarry (Excavation in rock) 



IL Clay 



HL — Sand and Gravel 



1 10 acre s : — $5,000; 10 25 acres: — $12,500; 25 + acres: $25,000 
with good operating record — otherwi s e $50,000. 

1 5 acres: $5,000; 5 10 acres: $12,500; 10 25 acres: $25,000: 25 ■! 



acres: $25,000 with good operating record — otherwise $50,000. 
1 5 acres: $2,500; 5 10 acres: $5,000; 10 25 acres: $12,500; 25 + 



acres: $25,000 with good operating record — otherwise $50,000. 



IV. Peat 



$150 per acre for the maximum acreage to be affected at any one 
time. — The maximum acreage shall include all s tockpile s . — waste 
piles, onsitc processing areas, all areas disturbed by any phase of 
mining activities. — including lands being cleared and drained in 
preparation for mining and not reclaimed and released by the 
department. — The operator shall pro\'ide accurately s caled s ite plan s 
or surveys documenting the maximum acreage to be affected at any 
one time. — This bonding requirement is based on the condition that 
all major water control structures shall be installed prior to the 
commencement of mining. 



y-. — Phosphate 



VI. Other s 



1 10 acres: $12,500; 10 25 acres: $25,000; 25 + acres: $25,000 



with good operating record — otherwi s e $50,000. 
To be set on individual basis. 



830 



8:10 



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PROPOSED RULES 



For the purposes of the s e Rules, a good operating record is defined a s two con s ecutive year s without being 

assessed a civil penalty or subject to other enforcement action pur s uant to G.S. 7 4 6 4 or having a permit 

suspended or revoked under G.S. 7 4 58 or bond or other s urety forfeited under G.S. 7 4 59. 

Upon timely rece i pt of the bond or acceptable security in the required amount, the mining permit will be 

i s sued. 

(a) After an application for a new mining permit or permit renewal, modification, or transfer has been 
approved, an applicant or permittee must file a bond with the Department in an amount to be determined by 
the Director. 

(b) If the applicant or permittee disagrees with the bond amount determined by the Director, the applicant 
or permittee may submit to the Director for his consideration, an estimate of reclamation costs from a third 
party contractor to be used as the bond amount. The estimate shall be provided to the Director within 30 days 
following the receipt of the Director's initial bond determination. After considering the estimate and 
recommendations provided by his staff, the Director shall notify the applicant or permittee of his bond 
determination. 

(c) The Director may invite the applicant or permittee to submit to the Department an estimate of 
reclamation costs from a third party contractor for the Director's use in determining the required bond 
amount. After considering the estimate and the recommendations provided by his staff, the Director shall 
notify the applicant or permittee of his bond determination. 

(d) The bond amount shall be based on a range of five hundred dollars ($500.00) to five thousand dollars 
($5,000) per acre of land approved by the Department to be affected. If the mining permit is modified to 
increase the total affected land, the bond shall be increased accordingly. The Director shall consider the 
method and extent of the required reclamation for a particular site in determining the bond amount. As areas 
at a site are reclaimed and formally released by the Department, the permittee may substitute a bond in an 
amount covering the remaining affected land at the site for the bond previously filed with the Department; 
otherwise, without such bond substitution, the Department shall retain the previously filed bond until all 
reclamation has been completed and approved by the De partment. 

(e) If an applicant or permittee has multiple sites, the a pplicant or permittee may file a separate bond with 
the Department for each site or the applicant or permittee may submit one blanket bond covering all sites in 
the aggregate amount of aH bond totals. Once the total amount of all bonds for separate sites or the blanket 
bond for all sites, reaches five hundred thousand dollars ($500, (X)0): 

(1) the applicant or permittee with separate bonds may submit a five hundred thousand dollar 
($500.000) blanket bond to be used for all future sites, or 

(2) the applicant or permittee with the five hundred thousand dollar ($500,000) blanket bond covering 
all sites may use that blanket bond for all future sites. 

If the Director finds that the applicant or permittee, in either case, has a good operating record, that the five 
hundred thousand dollars ($5(X).000) is sufficient to reclaim all sites and that no additional reclamation bond 
money is needed. If the Director finds that the applicant or permittee does not have a good operating record, 
that the five hundred thousand dollars ($500,000) is not sufficient to reclaim all sites, or that additional 
reclamation money js needed, the Director shall require per acreage bonding for future sites as provided in 
Paragraph (d) of this Rule. 

(f) For the purposes of this Rule, a good operating record is defined as two consecutive years of operation 
within the State of North Carolina without final assessment of a civil penalty or other enforcement action 
pursuant to G.S. 74-64, or having a permit suspended or revoked under G.S. 74-58, or having a bond or other 
surety forfeited under G.S. 74-59. 

Statutory Authority G.S. 74-51; 74-54; I43B-290. 

J\otice is hereby given in accordance with G.S. 1508-21. 2 that the North Carolina Wildlife Resources 
Conunission intends to amend rules cited as 15A NCAC I OB .0117; I OH .0109 and adopt rule cited as 15A 
NCAC IOC .0215. 



8:10 NORTH CAROLINA REGISTER August 16, 1993 831 



PROPOSED RULES 



1 he proposed effective date of this action is November 1, 1993. 

1 he public hearing will he conducted at 10:00 a.m. on September 2. 1993 at the Archdale Building, Room A 

332. 512 North Salisbury Street. Raleigh. NC 27604-1188. ^ 

Iveason for Proposed Actions: 

15A NCAC lOB .01 17 - To specif' that replacement co.<;ts are for wild anirtuils and wild birds. 

15A NCAC IOC .0215 - To establish replacement costs for fi.shes. 

15A NCAC lOH .0109 - To allow use of quail call pen traps on or after September 1st by properly licensed 

controlled hunting preserves. 

(comment Procedures: Interested persons may present their views either orally or in writing at the hearing. 
In addition, the record of hearing will be open for receipt cf written cotnments from August 16, 1993 to 
September 15, 1993. Such written comments must be delivered or mailed to the N. C Wildlife Resources 
Commission, 512 North Salisbury Street, Raleigh, NC 27604-1188. 

CHAPTER 10 - WILDLIFE RESOURCES AND WATER SAFETY 

SUBCHAPTER lOB - HUNTING AND TRAPPING 

SECTION .0100 - GENERAL REGULATIONS 

.0117 REPLACEMENT COSTS OF WILDLIFE RESOURCES - WILD ANIMALS AND WILD BIRDS 

(a) Replacement Costs Distinguished. As it applies to wildlife resources, the term "replacement costs" must 

be distinguished from the "value" of the wildlife concerned. Except in cases where wildlif e sp e cim e ns wild ^ 

animals and wild birds may lawfully be sold on the open market, as with the carcasses or pelts of furbearing ■ 

animals, the monetary value of the specimens cannot be determined easily. The degree of special interest or 
concern in a particular species by the public, including not only hunters and trappers, but conservationists and 
those to whom the value of wildlife resources is primarily aesthetic, cannot be measured in dollar amounts. 
The average cost per animal or bird legally taken by hunters, including travel and lodging, weapons and 
ammunition, excise taxes on equipment, licenses, and hunting club fees, may fairly be estimated. This too, 
however, is a reflection of the value of existing wildlife resources rather than a measure of the cost of its 
replacement. Thus, the relative values of wildlife species should be considered only as they may bear on the 
necessity or desirability of actual replacement. 

(b) Factors to Be Considered. The factors which should be considered in determining the replacement costs 
of resident species of wildlife resources that have been taken, injured, removed, harmfully altered, damaged, 
or destroyed include the following: 

(1) whether the species is classified as endangered or threatened; 

(2) the relative frequency of occurrence of the species m the state; 

(3) the extent of existing habitat suitable for the species within the state; 

(4) the dependency of the species on unique habitat requirements; 

(5) the cost of acquiring, by purchase or long-term lease, lands and waters for habitat development; 

(6) the cost of improving and maintaining suitable habitat for the species on lands and waters owned 
or acquired; 

(7) the cost of live-trapping the species in areas of adequate populations and transplanting them to areas 
of suitable habitat with low populations; 

(8) the availability of the species and the cost of acquisition for restocking purposes; 

(9) the cost of rearing in captivity those species which, when released, have a probability of survival 
in the wild; 

(10) the ratio between the natural life expectancy of the species and the period of its probable survival / 
when, having been reared in captivity, it is released to the wild; ^ 

(11) the change in the value of money as reflected by the consumer price index. 

832 8:10 NORTH CAROLINA REGISTER August 16, 1993 



PROPOSED RULES 



t 



I 



i 



(c) Costs of Replacement. Based on the factors listed in Paragraph (b) of this Rule, including the June, 
1980, consumer price index of 247.6 percent of the 1967 base, the following wild animals and wild birds are 
listed with the estimated replacement cost of each individual specimen: 

Species Replacement Cost 

Any endangered species $2,300.00 

Any threatened species 2,000.00 

Any other species with no open season 25.00 

Beaver 48.00 

Black Bear 1,035.00 

Crow 2.00 

Deer 279.00 

Dove 6.00 

Duck 19.00 

Fox 41.00 

Goose 58.00 

Grouse 17.00 

Mink 35.00 

Muskrat 9.00 

Nutria 7.00 

Opossum 3.00 

Otter 300.00 

Pheasant 17.00 

Quail 14.00 

Rabbit 6.00 

Raccoon 27.00 

Rail 17.00 

Skunk 9.00 

Snipe 12.00 

Squirrel, fox 25.00 

Squirrel, gray and red 8.00 

Tundra swan 500.00 

Weasel 5.00 

Wild boar 350.00 

Wildcat 300.00 

Wild turkey 750.00 

Woodcock 12.00 

(d) Costs of Investigations 

(1) Factors to Be Considered. Upon any investigation required as provided by G.S. 143-215. 3(a)(7) 
or by court order for the purpose of determining the cost of replacement of wildlife resources 
which have been killed, taken, injured, removed, harmfully altered, damaged, or destroyed, the 
factors to be considered in determining the cost of the investigation are as follows: 

(A) the time expended by the employee or employees making the investigation, including travel time 
between the place of usual employment and the site of the investigation, and the time required 
in formulating and rendering the report; 

(B) the cost of service to the state of each employee concerned, including annual salary, hospitaliza- 
tion insurance, and the state's contribution to social security taxes and to the applicable retirement 
system; 

(C) subsistence of the investigating personnel, including meals, reasonable gratuities, and lodging 
away from home, when required; 

(D) the cost of all necessary transportation; 

(E) the use or rental of boats and motors, when required; 

(F) the cost of cleaning or repairing any uniform or clothing that may be damaged, soiled or 



8:10 NORTH CAROLINA REGISTER August 16, 1993 833 



PROPOSED RULES 



contaminated by reason of completing the investigation; 
(G) the cost of necessary telephonic communications; 

(H) any other expense directly related to and necessitated by the investigation. 
(2) Computation of Costs. In assessing the cost of time expended in completing the investigation, the 
time expended by each person required to take part in the investigation shall be recorded in hours, 
the value of which shall be computed according to the ratio between the annual costs of service of 
the employee and his total annual working hours (2087 hours reduced by holidays, annual leave 
entitlement, and earned sick leave). Other costs shall be assessed as follows: 

(A) subsistence: the actual cost of meals, reasonable gratuities, and lodging away from home, not 
to exceed the then current maximum per diem for state employees; 

(B) transportation: total mileage by motor vehicle multiplied by: 

(i) the then current rate per mile for travel by state-owned vehicle; or 

(ii) the then current rate per mile for travel by privately owned vehicle, as applicable; 

(C) boat and motor: S5.00 per hour; 

(D) uniform and clothing cleaning and repair: actual cost; 

(E) telephonic communications: actual cost; 

(F) other expenses: actual cost. 

Siutmory- Authorin- G.S. 113-134: 113-267. 

SUBCHAPTER IOC - INLANT) FISHING REGULATIONS 
SECTION .0200 - CENTRAL REGLXATIONS 

.0215 REPLACEMENT COSTS OF WILDLIFE RESOLTICES - FISH 

(a) Replacement Costs Distinguished. As it applies to Fishes the term "replacement costs" must be 
distinguished from the "value" of the fish concerned. Except in cases v.'here fish may lawfully be sold on the 
open market, as with commerciallv reared species, the monetary \alue of the specimens cannot be determined 
easiK'. The degree of special interest or concern in a particular species by the public, including not only 
anglers, but conservationists and those to whom the value of fishes is primarily aesthetic, cannot be measured 
in dollar amounts. The average cost per fish legally taken by anglers including travel and lodging, fishing 
equipment and bait, excise taxes on equipment, licenses and other fees, may fairly be estimated. This too, 
however, is a reflection of the value of existing fishery resources rather than a measure of the cost of their 
replacement. Thus, the relative value of fish species should be considered only as they may bear on the 
necessity or desirability of actual replacement. 

(b) Factors to be Considered. The factors which should be considered in determining the replacement costs 
of resident species of fishes that have been taken, injured, removed, harmfully altered, damaged, or destroyed 
include the following: 

(1 ) whether the species js classified as endangered or threatened; 

(2) the relati\'e frequency of occurrence of the species jn the state; 

(3) the extent of existing habitat suitable for the species within the state; 

(4) the dependency of the species on unique habitat requirements; 

(5) the cost of improving and maintaining suitable habitat for the species; 

(6) the cost of capturing the species j_n areas of adequate populations and transplanting them to areas 
of suitable habitat v>'ith low populations; 

(7) the cost of propagating and rearing the species in a hatchery and the cost of transporting them to 
areas of suitable habitat with low populations; 

(8) the a\ailability of the species and the cost ot acquisition for restocking purposes; 

(9) the cost of those species which, uhen released. ha\'e a probability of sur\i\al in the uild; 

( 10) the ratio between the natural life expectanc\- of the species and the period of its probable sur\i\al 
when, hasing been reared [n a hatchery, ft [s released to the wild; 

(11) the change in the \alue of money as reflected by the consumer price index. 

(c) Costs of Replacement. Based on the factors listed m Paragraph (b) of this Rule, including the June. 
1980. consumer price index of 247.6 percent of tfre 1967 base, the following fishes are listed with the 
estimated replacement cost: 



834 8:10 NORTH CAROLINA REGISTER August 16, 1993 



I 



PROPOSED RULES 



Species 




Weight 


Replacement Cost 


Striped bass and 




up to 5 lbs. 


$25/fish 


Bodie bass 




5 lbs. to 10 lbs. 


$20/lb. 






10 lbs. to 20 lbs. 


$25/lb. 






Over 20 lbs. 


$30/lb. 


White bass 




up to 2 lbs. 


$10/fish 






Over 2 lbs. 


$10/lb. 


Lareemouth bass 




Up to 2 lbs. 


$10/fish 






2 lbs. to 7 lbs. 


$10/lb. 






Over 7 lbs. 


$20/lb. 


Smallmoutii bass 


and 


Up to 2 lbs. 


$10/fish 


other black bass 




2 lbs. to 4 lbs. 


$10/lb. 






Over 4 lbs. 


$20/lb. 


Walleve 




Up to 2 lbs. 


$10/fish 






2 lbs. to 5 lbs. 


$10/lb. 






Over 5 lbs. 


$20/lb. 


Musicellunge 




Ue to 1 lb. 


$30/fish 






Over 1 lb. 


$30/lb. 


Sunfish 




All Sizes 


$5/fish 


Crappie 




All Sizes 


$10/fish 


Catfish (Channel, 


Blue 


Ue to 1 lb. 


$5/fish 


and Flathead) 




1 lb. to 20 lbs. 


$5/lb. 






Over 20 lbs. 


$10/lb. 


Trout (Wild) 




Up to 7 in. 


$10/fish 






7 in. to 13 in. 


$15/fish 






Over 13 in. 


$30/lb. 


Trout (Hatcherv) 




7 in. to 13 in. 


$5/fish 






Over 13 in. 


$10/lb. 


All Other Game Fish 


All Sizes 


$5/fish 


All Other Non-Game Fish 


All Sizes 


$2.50/fish 


(d) Cost of Investigations. 


The factors 


to be considered and the computation 


of costs are as specified ii 


15A NCAC lOB .0117. 









Statutory Authority G.S. 113-134: 113-267. 

SUBCHAPTER lOH - REGULATED ACTIVITIES 

SECTION .0100 - CONTROLLED HUNTING PRESERVES FOR DOMESTICALLY 

RAISED GAME BIRDS 

.0109 QUAIL CALL-PEN TRAPS 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



835 



PROPOSED RITES 



(a) Permit Required. A licensed controlled hunting preserve operator who releases pen-raised quail for 
hunting or dog training purposes may apply to the Wildlife Resources Commission for a permit to operate one 
or more quail call-pen traps in accordance with the requirements of this Rule for the purpose of recovering 
any such quail that are not killed. Such application shall be made on a form supplied by the Commission 
which shall contain such information as may be required by the Executive Director and which shall be 
accompanied by a reasonably accurate map delineating the boundaries of the controlled hunting preserve and 
indicating the proposed location of each call-pen trap to be located thereon. 

(b) Term of Permit. The permit required by Subsection (a) of this Rule shall become valid upon registration 
of a call-pen trap as required by this Rule and shall expire coincident with the expiration of the license of the 
controlled hunting preserve. No call-pen trap shall be utilized before the opxjn hunting preserve season 
September i or until it has been registered. 

(c) Location of Traps. No quail call-pen trap shall be located within 100 yards of any external boundary' 
of the hunting preserve, and no such trap shall be relocated after registration during the term of the current 
hunting preserve license. 

(d) Number of Traps. The number of quail call-pen traps shall be limited to one for any controlled hunting 
preserve containing less than 300 acres, two for any preserve containing 300 or more acres but less than 600 
acres, and three for any preserve containing 600 acres or more. 

(e) Registration. After construction and prior to use, each call-pen trap shall be pro\'ided with a registration 
card which must be securely attached and visibly displayed on the trap. 

Statutory Authority G.S. 113-134; 113-291.1. 

TITLE 19A - DEPARTMENT OF TRANSPORTATION 

Jylotice is hereby given in accordance with G.S. 150B-21.2 that the North Carolina Department of 
Transportation intends to amend rules cited as 19A NCAC 2D .0602 and .0607. 

1 he proposed effective date of this action is December 1 . 1993. 

1 he public hearing will be conducted at 10:00 a.m. on August 31. 1993 at the Highway Building. Room 150. 
1 South Wilmington Street. Raleigh, NC 27611. 

Ixeason for Proposed Action: 

19A NCAC 2D .0602 - States responsibility for injury and damage for oversize permit vehicles. 

19A NCAC 2D .0607 - Clarifies conditions of oversize/overweight vehicles and adds additional weight and 

axle information. 

i^onunent Procedures: Any interested person may present convnents at the hearing for a maximum of 10 
minutes or by submitting a written statement. Any person wishing to make a presentation at the hearing 
should contact: Emily Lee, NCDOT. P. O. Box 25201 . Raleigh, NC 27611 by August 31, 1993. The hearing 
record will remain open for written convnents until September 16, 1993. Written conmients must be sent to 
the address above and must state the proposed rule to which the comments are addressed. 

CHAPTER 2 - DI\TSION OF HIGHWAYS 

SLBCH.\PTER 2D - HIGHVVAY OPERATIONS 

SECTION .0600 - O^TRSIZE-0\T:RWEIGHT PERAHTS 

.0602 PEIL\nTS-ISSUANCE AND FEES 

(a) Permits may be issued ef for mo\'ements of loads which cannot be reasonably divided, dismantled or 



836 8:10 NORTH CAROLINA REGISTER August 16, 1993 



i 



PROPOSED RULES 



disassembled, or so loaded to meet legal requirements. Permits are issued on authorized forms with 
appropriate designation for qualifying moves. To be valid, a permit must be signed by the permittee and 
carried in the towing unit while permitted load is in transit. A permit issued by the Department is not valid 
for travel over municipal streets (Defined as streets or highways not maintained by the State of North 
Carolina). Permitted vehicles will not travel in convoy. The permittee for any oversize/overweight movement 
assumes all responsibility for injury to persons or damage to property of any kind and agrees to hold the 
Department harmless for any claims arising out of hjs conduct or actions. 

Single trip permits may include a return trip to origin if requested at the time of original issuance and the 
return trip can be made within the validation of such permit. No single trip permit request will be issued for 
a time period to exceed 30 days. Annual permits (blanket) are valid 12 months from the date of issuance. 

City Passenger Buses which exceed the weight limits in G.S. 20-1 18(f) may be issued permits for operation 
on the highways of the state in the vicinity of the municipality and to qualify the vehicle for license. 

(-1^ Single trip permits may include a return trip to origin if rcqucatod at the time of original issuance 

and the return trip can bo made within the validation of such permit. — No single trip p)crmit request 
will be is s ued for a time period to exceed 30 days. 

(3^ Annual permits (blanket) are valid 12 month s from the dat e of i ss uanc e . — They may be issued for: 

^A^ — Permitted loads up to 10' wide authorizing travel on all roads; 

f&) — Up to but not to exceed a width of a 12' authorizing travel on North Carolina, Inter s tate and US 
highways. — Provided, mobile/modular homes not to exceed a width of a 1 4 ' unit with an 
allov»'ablc roof overhang not to exceed 12" may al s o be authorized to travel on designated North 
Carolina. Interstate and US highways. 

0) City Pas s enger Buses which exceed the weight limits in GS 20 1 18(f) may be issued permits for 

operation on the highways of the state in the vicinity of the municipality and to qualify' the vehicle 
for l icense. 
(b) A fee will be collected as specified in G.S. 20-1 19(b). Only cash, certified check, money order or 
company check will be accepted. No personal checks will be accepted. Permittees with established credit 
accounts will be billed monthly for permits issued for the previous month. All fee s collected arc to be 
proce ss ed in accordance with DOT Field Policy Procedure Manual, Chapter 6, Section 22. — Provided, the 
following exemptions of fees shall apply to permit s i ss ued: 

^ For house move s ; 

(3^ For movement of farm equipment by the farmer for agricultural purposes; 

0j To any agency of the United State Government; 

i4) The Stat e of North Carolina or its agencies, — institutions, or municipalities, — provided the 

vehicle/vehicle combination is registered in the name of s uch government body. 

Statutory Authority^ G.S. 20-119: 136-18(5). 

.0607 PERMITS-WEIGHT, DIMENSIONS AND LIMITATIONS 

(a) Width i s limited to 15' for all movements except Qualifying vehicle/vehicle combinations are limited 
to a maximum width of J^ with exceptions for certain construction machinery, buildings, structures, 
manufacturing machinery for moves authorized by the Central Permit Office or Head of the Maintenance Unit. 
If blades of bulldozers, grader s construction equipment or front end loader buckets cannot be angled to extend 
no more than 12' across the roadway, they must shall be removed. A blade or bucket or other attachment 
which has been removed for safety reasons, or if in the best interests to the Department has been removed, 
may be moved hauled with the equipment without being considered a divisible load. Moves exceeding 12' 
for a commodity e ss ential to national health, s afety or defen s e may be permitted upon rece i pt of proof of 
necessity submitted by the agency directly concerned, however, if considered to be detrimental or unsafe to 
the other traveling public or if the highway cannot accommodate the move due to width or weight, s uch move 
will be denied. Moves exceeding 12' [n width may be denied if considered by the issuing agent to be unsafe 
to the traveling public or if the highway cannot accommodate the move due to width. Loads must be so 
placed on vehicle/ vehicle combination so as to present least over dimension to traffic. 

(1) Single trip ; width not to exceed 15' for all movements unless authorized by the Central Permit 
Office. Exception: "Housemoves" shall be approved by Division and District field offices. 

(2) Annual permits ; not to exceed a maximum width of \7J_ authorizing travel on all highways m 
North Carolina. Provided: Mobile/modular homes may not exceed a width of a 14' unit with an 



8:10 NORTH CAROLINA REGISTER August 16, 1993 837 



PROPOSED RULES 



allowable roof overhang not to exceed a total of 12" may be authorized to travel on designated 
North Carolina. Interstate and US Highways. 
(b) The maximum weight permitted on a designated route is determined by the bridge capacity of bridges 
to be crossed during movement. Moves exceeding weight limits for highways or bridge structures may be 
denied if considered by the issuing agent unsafe and may cause damage to such highway or structure. A 
surety bond may be required to cover the cost of damage to pavement, bridges or other damages incurred 
during the permitted move. 

( 1 ) The maximum single trip and annual permit weight allowed for vehicle or vehicle combinations not 
to include including off highway construction equipment without an engineering study is: 



Single axle 

2 axle tandem 

3 or more axle group 

3 axle vehicle 

4 axle vehicle 

5 axle vehicle 

6 axle vehicle 

6 axle vehicle 

7 or more axle vehicle 

(2) The maximum permit weight allowed for off highway construction equipment is: 
(A) Self-propelled scrapers with low pressure tires: 
Single axle 

2 axle vehicle 

3 axle vehicle 

4 Qxle vehicle 
Tandem axle 



25,000 lbs. 

50.000 lbs. 

60.000 lbs. 

60.000 lbs. 

75.000 lbs. 

94.500 lbs. 
103.000 lbs. 
108.000 lbs. 
122.000 lbs. 



37.000 lbs. 
55.000 lbs. 
70.000 lb s . 
00.000 lbs. 
50,000 lbs. 



I 



2 AXLE VEHICLE 
extreme wheelbase less than 10' 
10' or greater 



65.000 lbs. 
70.000 lbs. 



3 AXLE VEHICLE 

single/tandem axle configuration 
extreme wheelbase less than 16' 
16' or greater 
single/single/single axle configuration 



75.000 lbs. 

80.000 lbs. 

engineering study 



4 AXLE VEHICLE 
extreme wheelbase 28' or greater 
single axle 



90.000 lbs. 
37.000 lbs. 



(B) Self-propelled truck cranes with counterweights and boom removed (if practical): 
3 axle s — not to exceed 25.000 lbs. per axle maximum gro ss weight 



70.000 lbs 



4 axles — not to exceed 25.000 lb s . per axle maximum gross weight 



78.000 lbs. 



5 axle s — wheel base less than 2 44 inches: 
front 2 



+e&- 
rear 3 axles 
Gros s 



5 axle s — wheel base more than 2 44 inches: 
front 2 axles 



rear 3 axle s 



Gros 



6 axles 



— wheel base more than 296 inches: 
2 axle tandem 



3 axle group 
Gros s 



35.000 lbs. 



56.500 lbs. 



91.500 lbs 



37.500 lb s . 



57.000 lbs. 



9 4 .500 lb s 



,50.000 lb s . 



57.000 lb s 



103.000 lbs. 



838 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



PROPOSED RULES 



i 



I 



I 



* 7 axles — extreme wheel baoc of 41 feet: 

2 axle tandem 4 0.000 lbs. 

3 axle group 57,000 lbs. 

4 axle group 71.000 lbs. 

Gfess 122.000 lbs. 

'''Seven axle equipment aubjcct to individual review for approval. — Speed restricted to 4 5 m.p.h. 

2 AXLE VEHICLE 

single/single axle configuration 

more than 8' 50.000 lbs, 

single axle 25,000 lbs. 

3 AXLE VEHICLE 

single/tandem axle configuration 

extreme wheelbase greater than 15' 70.000 lbs, 

single axle 25.000 lbs, 

tandem axle 50.000 lbs. 

4 AXLE VEHICLE 

quad grouping (less than 8^ between 
any two consecutive axles) 

extreme wheelbase greater than 18' 
single axle 
tandem/tandem 

extreme wheelbase greater than 16' but less than 22' 

tandem axle 
extreme wheelbase 22' or greater 
tandem axle 

5 AXLE VEHICLE 

tandem/tri axle configuration 

extreme wheelbase greater than 24' but less than 28' 
tandem axle 
tri axle 
extreme wheelbase 28' or greater 
tandem axle 
tri axle 
tandem/tandem/single axle configuration 
extreme wheelbase 31 ' or greater 
single axle 
tandem axle 

6 AXLE VEHICLE 

tri/tri axle configuration 

extreme wheelbase greater than 29' but less than 34' 

tri axle 
extreme wheelbase 34' or greater 
tri axle 
tandem/tandem/tandem axle configuration 

extreme wheelbase greater than 37' but less than 39' 
tandem axle 
(no two consecutive set of tandems to exceed 90,000 lbs.) 
extreme wheelbase 39' or greater 
tandem axle 
(no two consecutive set of tandems to exceed 90,000 lbs.) 

7 AXLE VEHICLE 

ALL VARIATIONS OF AXLE CONFIGURATIONS OTHER THAN THOSE LISTED WILL REQUIRE INDIVIDUAL 
ENGINEERING STUDY. 



8:10 NORTH CAROLINA REGISTER August 16, 1993 839 



78.000 lbs. 


20,000 lbs. 


78,000 lbs. 


50,000 lbs. 


90,000 lbs. 


50,000 lbs. 


86,000 lbs. 


37,500 lbs. 


60,000 lbs. 


94,500 lbs. 


37.500 lbs. 


60,000 lbs. 


94.500 lbs. 


15,000 lbs. 


50,000 lbs. 


100,000 lbs. 


60,000 lbs. 


108,000 lbs. 


60,000 lbs. 


100.000 lbs. 


50,000 lbs. 


108.000 lbs. 


50,000 lbs. 


engineering study 



PROPOSED RULES 



(3) Scaled Ship ContainerG Vehicles hauling sealed ship containers may qualify for an overweight 
permit provided : 

(A) Going to or from a designated seaport (to include in state and our of state) and has been or will 
be transported by marine shipment; 

(B) Licensed for maximum allowable weight allowed in G.S. 20-118; 

(C) Vehicle/vehicle combination has at least five axles; 

(D) To have proper documentation (shippers bill of laden and/ or trucking bill of laden) of sealed 
commodity being transported available for enforcement inspection. 

The Department of Transportation shall issue a permit for 80, (XX) lbs. but not to exceed 94,500 lbs. with up 
to ten designated routes of permitted travel pro\'ided all qualifying requirements have been met. 

(c) Overlength permits will be limited as follows: 

(1) Single trip permits are limited to 85' to include towing vehicle. Approval may be given by the 
Central Permit Office for permitted loads in excess of 85' after review of route of travel. 
Provided, mobile/modular Mobile/modular homes may be issued permits not to exceed 95'. 

(2) Annual (blanket) permits will not be issued for lengths to exceed 65'. Front overhang may not 
exceed 3' unless if transported otherwise would create a safety hazard. Provided, mobile/modular 
home permits may be issued for a length not to exceed 91 '. 

(d) There are not set limits for permitted height as it is controlled by clearances on designated route. Permit 
will indicate "Check Height on Structures". The issuance of the permit does not imply nor guarantee the 
clearance for the permitted load and all vertical clearances should shall be checked by the permittee prior to 
movement underneath. 

(e) Time of The move is to be made between sunrise and sunset Monday through Saturday with no move 
to be made on Sunday^ or approved state holidays. Mobile/modular homes are restricted to travel between 
sunrise and sunset Monday through 12 noon on Saturday. Time restrictions may be determined by the issuing 
office if in the best interest for safety and/or expedite traffic. No movement of permitted vehicle/vehicle 
combination after noon on the day preceding the six holidays of New Years Day, Memorial Day. 
Independence Day, Labor Day, TTianksgiving Day and Christmas Day and no movement until noon on the 
day following the holiday. Continuous travel QA hr/7 day/365 days a year) is would be authorized for any 
vehicle/vehicle combination up to but not to exceed 94.500 lbs., provided: 

(1) no other o\er legal dimension of width, height or length is to be included in the permitted move^- 
aftd Exception: self-propelled equipment may be authorized for continuous travel with properly 
marked overhang (front and/or rear) not to exceed a total of 10'; and 

(2) the vehicle is licensed for the maximum allowable weight determined by extreme axle measure- 
ments. If the holiday falls on Sunday, the following Monday will be considered the holidays. 
Time re s triction s may be determin e d by the i ss uing office if in the best interest for safety and/or 
to expedite traffic. — Provided, mobile/modular home s are restricted to travel Monday through 12 
noon on Saturday. 

(f) Tlie speed of permitted mo\es shall be that which js reasonable and prudent for the load, considering 
weight and bulk, under conditions existing at the time; hov^ever, the maximum speed shall not exceed the 
posted speed limit. The driver w.'ill maintain a safe speed consistent with maintaining proper interval and 
temporarily the traveling public and avoid creating traffic congestion by periodically relinquishing the traffic 
way to allow the passage of following vehicles when a build up of traffic occurs. Provided, seven axle 
self-propelled truck cranes with extreme wheel base of 44 feet shall not exceed a maximum speed of 45 mph. 

(g) Additional safety measures will be required are as follows: 

(1) A yellow (or a color of equal effectiveness) banner measuring 7' x 18" bearing the legend 
"Oversize Load" in 10" black letters wtH- shall be displayed on the towing unit for all loads in 
excess of 10' wide; 

(2) Red flags measuring 18" square will be displayed on all sides at the widest point of load for all 
loads in excess of 10' wide but the flags shall be so mounted as to not increase the overall width 
of the load; 

(3) A flagman may be required for vehicle/\'ehicle combinations of loads in excess of 12' in width 
when a speed of 20 miles per hour mph cannot be maintained on level terrainr i 

(4) Rear \iew mirrors and other safety devices on towing units attached for movement of overwidth 
loads shall be removed or retracted to conform with legal width when unit is not towing/hauling 
such \ehicle or load; 



840 8:10 NORTH CAROLINA REGISTER August 16, 1993 



i 



PROPOSED RULES 



(5) Flashing amber lights will be used as determined by the issuing permit office. 

(h) The object to be transported wttt shall not be loaded or parked, day or night, on the highway right of 
way without specific permission from the office issuing the permit. 

(i) No move wi44 shall be made when weather conditions render visibility less than 500' for a person or 
vehicle. Moves will- shall not be made when highway is covered with snow or ice or at any time travel 
conditions are considered unsafe by the Division of Highways, State Highway Patrol or other Law 
Enforcement Officers having jurisdiction. Movement of a mobile/modular 14' unit with an allowable roof 
overhang not to exceed 12" wtH shall be prohibited when wind velocities exceed 25 miles per hour mph in 
gusts. 

(j) All obstructions, including traffic signals, signs, utility lines wttt shall be removed immediately prior 
to and replaced immediately after the move at the expense of the mover, provided arrangements for and 
approval from the owner is obtained. In no event are trees, shrubs, or official signs to be cut, trimmed or 
removed without personal approval from the district engineer having jurisdiction over the area involved. 

(k) Requirement for The requirement of escort vehicles(s) wHl for permitted loads shall be determined by 
the issuing office and/or the Central Permit Office. 



Authority G.S. 20-119; 136-18(5); Board of Transportation Minutes for February 16. 1 977 and November 10, 
1978. 

only if time permits. 

CHAPTER 19 - BOARD OF 
ELECTROLYSIS EXAMINERS 

SECTION .0600 - SCHOOLS 

.0602 APPLICATION FOR CERTIFICATION 

Each person applying for a school certification 
shall submit to the Board the information required 
by G.S. 88A-19and: 

(1) A copy of the student contract required 
by Rule .0605 of this Section; and 

(2) A copy of the form for student 
authorization to receive electrolysis 
treatment required by Rule .0605 of this 
Section. 

Statutory Authority G.S. 88A-6; 88A-19. 



TITLE 21 - OCCUPATIONAL 
LICENSING BOARDS 

fyotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of 
Electrolysis Examiners intends to adopt rules cited 
as 21 NCAC 19 .0602 - .0621. 

1 he proposed effective date of this action is 
November 1, 1993. 

1 he public hearini> will be conducted at 10:00 
a.m. on September 15, 1993 at the State 
Employees' Credit Union Building, Fourth Floor 
Conference Room, 801 Hillsborough Street, 
Raleigh, North Carolina. 

IVeason for Proposed Action: To set minimum 
requirements for certification of electrolysis 
schools. 

L^onvnent Procedures: Tlie record of hearing will 
he open for receipt of written comments from 
Augu.ft 16, 1993 through September 15, 1993. 
Written convnents may either he submitted at the 
hearing or delivered to the Board at its mailing 
address (do Patricia Holland, 205 Westview 
Place, High Point, N.C. 27260). Anyone wishing 
to speak at the hearing should notify Patricia 
Holland in writing at the Board 's mailing address 
no later than 5:00 p.m. the day before the 
meeting. Anyone whose written request to speak is 
not received by this deadline will be able to speak 



school 



.0603 CERTIFICATIONS NOT 
TRANSFERABLE 

Consistent with G.S. 88A-19, 

certifications are valid only for the location named 
in the certification and are not transferable either 
to a new owner or to a new location. A school 
shall within 10 business days notify the Board in 
writing of a sale, transfer, change [n management 
or change in ownership. Each school shall display 
its certification in a conspicuous place near the 
main entrance. 

Statutory Authority G.S. 88A-6; 88A-19; 88A-20. 

.0604 PROGRAM DIRECTORS 

Each school shall at aU times be under the 
direction and supervision of a program director. 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



841 



PROPOSED RULES 



The program director shall be a licensed practicing 
electrologist who is certified as an instructor 
pursuant to G.S. 88A-17. The program director of 
each school shall be responsible for the 
organization, administration, development and 
general effectiseness of the school's electrolysis 
training program. 

Statutory- Aurhoriry G.S. 88A-6; 88A-19; 88A-20. 

.0605 EXROLLMENT PROCEDURES 

(a) Evers' school shall furnish to each student 
upon enrollment a signed copy of the school 
contract with the student and a copy of the school 
handbook v.hich shall include the school 
curriculum as approved by the Board. The school 
shall also furnish to each student upon enrollment 
a copy of the statutes and rules gox'erning 
electrologists and the sanitation standards issued by 
the Board. 

(b) Ever\' school shall obtain from each student 
on enrollment a signed copy of the student's 
permission to receive electrolysis treatment. Any 
limitations on treatment shall be listed on the 
permission form. 

(c) Within 10 business days after each student's 
enrollment, ex'ery school shall furnish the Board 
with the following: 

( 1 ) The name, address, date of enrollment, 
telephone number and specification of 
day or evening classes of each student, 
recorded on the school's stationers'; 

(2) A statement signed by the student 
stating that he or she has recei\ed a 
copy of the statutes and the rules 
governing electrologists and the 



sanitation standards issued by the Board 
and is cognizant of the fact that in order 
to qualify for an electrologist license 
the student must meet the requirements 
of G.S. 88A-10. 

Statutory- Authority G.S. 88A-6: 88A-19: 88.4-20. 

.0606 SCHOOL LOCKERS 

Evers' school shall pro\'ide each student v,'ith a 
separate locker for the student's clothes and 
effects. 



the school shall contain at least 40 square feet per 
student. 

Statutory Authority G.S. 88A-6: 88A-19. 

.0608 SCHOOL EQLTPMENT 

(a) Every school shall provide and maintain at 
least the following equipment: 

(1) one high frequency or thermolysis 
(short wave) machine; 
one gal \^anic/ thermolysis (blend) 
machine; 

stainless steel, insulated, and disposable 
epilation probes (or needles) of sizes 
002, 003^004, and 005; 
at least one circuline-type lamp, 
halogen lamp, or other type of 
magnif\'ing lamp; 

two treatment tables and chairs for 
clients and adjustable chairs or stools 
for students; 

a cabinet for towels and utilities for 
each table; 
a covered trash container for each 



i 



01 

ill 
iil 



15] 

i6i 

ill 
18J 

i9j 
10 



table; 
covered 



containers for all lotions. 



(II 



soaps, cotton balls, tissues and other 

supplies and sterilizing solutions; 

six dozen fine pointed epilation forceps 

(or tweezers); 

one plastic puncture-resistant container 

(for used sharps) for each table; 

one autoclave sterilizer, dry 



i 



sterilizer and ultrasonic cleaner; 
audio-visual teaching materials 
equipment. 



heat 
and 



(b) Onl\' F.C.C. approved types of epilators 
registered by the federal Food and Drug 
Administration shall be used by each school in 
training students. 

(c) All epilators. autoclaves, and dry heat 
sterilizers shall be state-of-the-art and shall be 
monitored monthly to ascertain effectiveness. Any 
changes from the list of equipment provided to the 
Board pursuant to this Rule shall be reported to the 
Board. 

Statutory- Authorit\- G.S. 88A-6: 88A-19; 88A-20. 



Statutory Authority- G.S. 8SA-6: 88A-19. 

.0607 SCHOOL BLILDLNGS 

Each school shall contain at least one classroom. 
at least one area for practical demonstrations, and 
at least one private treatment room. In addition. 



.0609 SCHOOL LIBR.\RY 

Even,' school shall maintain a library' containing 
at least one copy of each textbook used and shall 
make the books in the libran,' a\'ailable for use by 
the students. These books must be approved by 
the Board. 



€ 



842 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



PROPOSED RULES 



Statutory Authority G.S. 88A-6; 88A-19; 88A-20. 

.0610 RECORD OF ATTENDANCE 

Every school shall: 

(1) keep a daily record of the attendance of 
each student and a record of the time 
devoted by the student to practical and 
theoretical work; 

(2) establish credits; 

(3) and hold examinations before issuing 
diplomas. 

These records or any part of the information 
contained in the records shall be made available on 
request to any inspector or member of the Board 
assigned by the Board to inspect records. 

Statutory Authority G.S. 88A-6; 88 A- 19: 88A-20. 

.0611 IDENTIFICATION OF STUDENTS 

(a) All students must wear identification which 
clearly indicates the student's name and whether 
the student is a primary, junior, or senior student. 
A student shall be classified as a primary student 
until the completion of 200 hours of the 
curriculum. A student shall be classified as a 
junior student during the time the student is 
completing between 200 and 400 hours of the 
curriculum. A student shall be classified as a 
senior student after completion of 400 hours of the 
curriculum. 

(b) Every school shall notify the Board of the 
type of insignia issued by the school to be used by 
its students. 

Statutory Authority G.S. 88A-6: 88A-19: 88A-20. 

.0612 STUDENT PRACTICAL WORK; 
CREDIT FOR OBSERVING AND 
SERVING AS A CLIENT 

(a) No practical work may be done by students 
except within the school premises and under the 
direct supervision of a licensed instructor. 

(b) Hours of credit shall be given to a student 
for time spent as a client in the ratio of one hour 
of practical credit for every three hours as a client. 
The maximum hours of practical credit to be given 
a student for time spent as a client or observing 
will be 30 credit hours. Any student observing, or 
as a client, may receive either theory or clinical 
practice hours but not both for the same unit of 
time. 



EQUIPMENT 

Each group of \2 students or less engaged m 
practical work simultaneously shall have at least 
one licensed instructor in attendance at all times 
and necessary equipment shall be provided for 
each student and client. 

Statutory Authority G.S. 88A-6: 88A-19; 88A-20. 

.0614 SCHOOL HOURS AND SCHEDULE 

Every school shall maintain regular class hours 
with a daily schedule which shall be submitted to 
the Board for its approval every six months. 

Statutory Authority G.S. 88A-6; 88A-19; 88A-20. 

.0615 NOTICE TO PUBLIC 

Every school shall display in a conspicuous place 
adjacent to each treatment room a sign with 
display lettering at least two inches in height, 
which shall read as follows: 

ALL WORK DONE IN THIS SCHOOL IS 
PERFORMED BY STUDENTS. 

Statutory Authority G.S. 88A-6; 88A-19; 88A-20. 

.0616 REMUNERATION PROHIBITED 

No school shall, directly or indirectly, accept 
remuneratio n or make any charge for services 
rendered by its students for practice work. 

Statutory Authority G.S. 88A-6; 88A-19; 88A-20. 

.0617 SCHOOL ADVERTISEMENTS 

A school may advertise as such, but shall not m 
any way hold itself out as an electrolysis office. 

Statutory Authority G.S. 88A-6: 88A-19; 88A-20. 

.0618 PRIVATE PRACTICE IN A SCHOOL 
BUILDING 

No private electrolysis practice shall be 
maintained in any room or enclosure where a 
school's activities are conducted. Any private 
practice in a school building must have a separate 
entrance for the working quarters and a separate 
name and sign. 

Statutory Authority G.S. 88A-6; 88A-J6; 88A-19; 
88A-20. 



Statutory Authority G.S. 88A-6: 88A-19; 88A-20. 
.0613 STUDENT/TEACHER RATIO AND 



. 06 1 9 EQUIPMENT ENDORSEMENTS AND 
SALES PROHIBITED 

No school may endorse, recommend, advertise. 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



843 



PROPOSED RULES 



promote, or seU any type of epilator or other 
electrolysis equipment to the students jn the school 
or permit any other person to do sck 

Statutory Authority G.S. 88A-6: 88A-19: 88A-20. 

.0620 REPORT OF STUDENT LEAVING 

TTie Board is to be notified within 10 days in 
writing by the school of any student that leaves the 
school for any reason. 

Statutory Authority G.S. 88A-6: 88A-19; 88A-20. 

.0621 TRANSFER CREDIT 

Schools may allow a student credit towards the 
600-hour requirement for: 

(1 ) theoretical and practical hours taken in a 
basic electrolysis training course at anoth- 
er school within the five years preceding 
the student's enrollment; and 

(2) hours taken in a continuing education 
course within the three years preceding 
the student's enrollment. 

TTie school shall submit a request for appros'al of 
transfer credit, accompanied by proof satisfactory 
to the Board, and this request must be approved by 
the Board before the school may allow any transfer 
credit. 

Statutory Authority G.S. 88A-6: 88A-19: 88A-20. 

iS otice is hereby given in accordance with G.S. 
150B-21.2 that the N. C. State Board of Examiners 
of Practicing Psychologists intends to amend rule 
cited as 21 NCAC 54 . 1605. 

1 he proposed effective date of this action is 
Decetnber 1, 1993. 

1 he public hearing will he conducted at 1:00 
p.m. on August 31 , 1993 at the Center for Appala- 
chian Studies Conference Room. University Hall 
(2nd Floor), Appalachian State University, Boone, 
N.C. 

tveason for Proposed Action: To set the fee for 
taking the national examination. 

l^omment Procedures: Comments max he submit- 



ted in writing or in person at the public hearing or 
in writing prior to September 16, 1993 to Martha 
Storie, N. C. P.s}chology Board. University Hall. 
Appalachian State University' . Boone, N. C. 
28608. 

hidUor's Note: This Rule was filed as a 
temporary rule effective September 1, 1993 for a 
period of 180 days or until the permanent rule 
becomes effective, whichever is sooner. 

CHAPTER 54 - BOARD OF 
PRACTICING PSYCHOLOGISTS 

SECTION .1600 - CENTRAL PROVISIONS 

.1605 FEES 

In addition to fees specified in Article 18A, 
Chapter 90 of the North Carolina General Statutes, 
the following charges will be assessed for the 
indicated services: 

(1) eight dollars (S8.00) - copy of annual 
directory of licensed psychologists; 

(2) five dollars ($5.00) - copy of 21 NCAC 
54; 

(3j fifty dollars ($50.00) - renewal of 
license; 

(4) ten dollars ($10.00) - late renewal of 
license; 

(5) fifteen dollars ($15.00) - duplicate li- 
cense; 

(6) on e hundr e d dollars ($100.00) — national 
examination tak e n prior to October 6. 
\9mi one hundred fifty dollars ($150.00) 
- national examination taken on or aft e r 
October 6. 1989; prior to October 13. 
1993; two hundred seventy-five dollars 
($275.00) - national examination taken on 
or after October 13. 1993; 

(7) ten dollars ($10.00) - state examination; 
and 

(8) twenty-five cents ($0.25) per page - copy 
of minutes of Board meetings or tran- 
script of hearing. 

Statutory Authority G.S. 12-3. 1(c): 90-270.9: 
90-270. 11(a): 90-270. 1 1(h): 90-270.14: 90- 
270.18(b): 90-270.20. 



( 



844 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



LIST OF RULES CODIFIED 



The 


List of Rules Codified 


is a listing of rules that were filed with OAH in the month indicated. 


J\ey 










Citation 


= 


Title, Chapter, Subchapter and Rule(s) 




AD 


= 


Adopt 




AM 


= 


Amend 




RP 


= 


Repeal 




With Chgs 


= 


Final text differs from proposed text 




Corr 


= 


Typographical errors or changes that requires no rulenuiking 




Eff. Date 


= 


Date rule becomes effective 




Temp. Expires 


^ 


Rule was filed as a temporary rule and expires on this date or 180 days 



TITLE 



NORTH CAROLINA ADMINISTRATIVE CODE 
JULY 93 
DEPARTMENT TITLE DEPARTMENT 



1 


Administration 


21 


2 


Agriculture 




10 


Human Resources 




12 


Justice 




13 


Labor 




15A 


Environment, Health, 






and Natural Resources 


25 


17 
19A 


Revenue 
Transportation 


26 



Occupational Licensing Boards 

26 - Landscape Architects 

34 - Mortuary Science 

37 - Nursing Home Administrators 

54 - Practicing Psychologists 

58 - Real Estate Commission 

State Personnel 

Office of Administrative Hearings 



Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


1 NCAC 37 .01 02 -.01 03 




/ 




/ 




08/02/93 




.0201 




/ 








08/02/93 




.0208 


/ 










08/02/93 




2 NCAC 43L .0402 










/ 






10 NCAC 3R .3001 




/ 




/ 




09/01/93 




.3020 




/ 








09/01/93 




26H .0301 - .0304 




/ 








07/08/93 


180 DAYS 


.0305 - .0309 


/ 










07/08/93 


180 DAYS 


41 P .0008 




/ 




/ 




08/01/93 




42H .0906 




/ 




/ 




09/01/93 




10 NCAC 42H .0907 




/ 








09/01/93 




.0910 




/ 




/ 




09/01/93 







8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



845 



LIST OF RULES CODIFIED 



Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


12 NCAC 21 .0101 




/ 




/ 




08/02/93 




.0102 - .0103 




/ 








08/02/93 




.0104 


/ 






/ 




08/02/93 




.0202 




/ 




/ 




08/02/93 




.0203 


/ 






/ 




08/02/93 




12 NCAC 21 .0203 - .0207 
Recodified to 

12 NCAC 21 .0204 - .0208 












08/02/93 




.0204 - .0205 




/ 




/ 




08/02/93 




.0206 




/ 








08/02/93 




.0208 




/ 








08/02/93 




.0210 


/ 










08/02/93 




.0211 - .0213 


/ 






/ 




08/02/93 




.0214 


/ 










08/02/93 




.0301 




/ 








08/02/93 




.0304 




/ 








08/02/93 




.0305 




/ 




/ 




08/02/93 




.0306 


/ 










08/02/93 




7D .0100 










/ 






13 NCAC 7A .0101 




/ 








08/02/93 




.0103 




/ 








08/02/93 




.0301 - .0302 


/ 






/ 




08/02/93 




.0401 


/ 






/ 




08/02/93 




.0601 - .0607 


/ 






/ 




08/02/93 




.0703 




/ 








08/02/93 




7B .0101 - .0110 






/ 






08/02/93 




.0112 - .0118 






/ 






08/02/93 




.0120- .0121 






/ 






08/02/93 




.0201 - .0202 






/ 






08/02/93 




.0301 - .0317 






/ 






08/02/93 




13 NCAC 7B .0401 - .0418 
Recodified to 

13 NCAC 7A .0701 - .0718 












08/02/93 




13 NCAC 78 .0501 - .0509 






/ 






08/02/93 





846 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


13 NCAC 7B .0701 - .0713 
Recodified to 

13 NCAC 7A .0501 - .0513 












08/02/93 




78 .0801 - .0804 






/ 






08/02/93 




.0901 - .0905 






/ 






08/02/93 




.1001 




/ 




/ 




08/02/93 




13 NCAC 7B 
Recodified to 

13 NCAC 7A 


1001 
0303 












08/02/93 




78 


1002- .1003 






/ 






08/02/93 






1101 - .1111 






/ 






08/02/93 






1113 






/ 






08/02/93 






1115 - .1120 






/ 






08/02/93 






1201 - .1208 






/ 






08/02/93 




7C 


0101 - .0104 






/ 






08/02/93 




13 NCAC 7C 
Recodified to 

13 NCAC 7F 


0107 
0102 












08/02/93 




13 NCAC 7C 
Recodified to 

13 NCAC 7F 


0201 - .0226 
0401 - .0426 












08/02/93 




7C 


0304 - .0309 






/ 






08/02/93 




7D 


0101 - .0104 






/ 






08/02/93 






0201 - .0203 






/ 






08/02/93 






0301 - .0302 






/ 






08/02/93 






0401 - .0408 






/ 






08/02/93 






0501 - .0506 






/ 






08/02/93 






0601 - .0606 






/ 






08/02/93 






0701 - .0704 






/ 






08/02/93 






0801 - .0803 






/ 






08/02/93 






0901 - .0902 






/ 






08/02/93 






1001 - .1002 






/ 






08/02/93 






1101 - .1105 






/ 






08/02/93 




13 NCAC 7D 


1201 - .1206 






/ 






08/02/93 






1301 - .1302 






/ 






08/02/93 




13 NCAC 7D 


1401 - .1403 






/ 






08/02/93 







8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



847 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 

Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.1501 - .1509 






/ 






08/02/93 




.1601 - .1604 






/ 






08/02/93 




.1701 - .1702 






/ 






08/02/93 




.1801 - .1805 






/ 






08/02/93 




.1901 - .1904 






/ 






08/02/93 




.2001 - .2004 






/ 






08/02/93 




7E .0101 - .0102 






/ 






08/02/93 




.0201 - .0202 






/ 






08/02/93 




.0301 - .0303 






/ 






08/02/93 




.0401 - .0403 






/ 






08/02/93 




.0501 - .0502 






/ 






08/02/93 




.0601 - .0602 






/ 






08/02/93 




.0701 - .0702 






/ 






08/02/93 




.0801 - .0802 






/ 






08/02/93 




.0901 - .0903 






/ 






08/02/93 




.1001 - .1004 






/ 






08/02/93 




.1101 - .1103 






/ 






08/02/93 




.1201 - .1203 






/ 






08/02/93 




.1301 - .1302 






/ 






08/02/93 




.1401 - .1402 






/ 






08/02/93 




.1501 - .1503 






/ 






08/02/93 




.1601 - .1604 






/ 






08/02/93 




.1701 - .1702 






/ 






08/02/93 




.1801 - .1802 






/ 






08/02/93 




.1901 - .1903 






/ 






08/02/93 




.2001 - .2002 






/ 






08/02/93 




.2101 - ,2102 






/ 






08/02/93 




7F .0101 


/ 






/ 




08/02/93 




.0201 


/ 






/ 




08/02/93 




.0301 


/ 






/ 




08/02/93 




15A NCAC 2B .0506 




/ 








08/02/93 




7J .0107 










/ 






15A NCAC lOB .0203 










/ 









848 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



LIST OF RULES CODIFIED 



I 



I 



i 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


11 .0101 










/ 






.0303 










/ 






.0335 










/ 






.0603 - .0604 










/ 






.1200 










/ 






.1314 










/ 






.1500 










/ 






22A .0001 




/ 








08/02/93 




22B .0503 




/ 




/ 




08/02/93 




17 NCAC 10 .0506 




/ 








08/01/93 




.0508 




/ 








08/01/93 




19A NCAC 2B .0301 - .0302 






/ 






07/26/93 




.0303 - .0306 




/ 








07/26/93 




.0307 - .0308 






/ 






07/26/93 




.0310- .0312 




• 








07/26/93 




.0313 - .0314 










/ 






21 NCAC 26 .0205 




/ 




/ 




08/01/93 




.0207 - .0208 




/ 




/ 




08/01/93 




.0209 - .0210 


/ 






/ 




08/01/93 




.0211 


/ 










08/01/93 




.0301 




/ 




/ 




08/01/93 




34A .0125 


/ 










08/02/93 




.0201 




/ 








08/02/93 




34D .0104 -.0105 


/ 










08/02/93 




.0301 




/ 








08/02/93 




37 .0211 




/ 








08/02/93 




.0303 




/ 




/ 




08/02/93 




.0308 




/ 








08/02/93 




.0404 




/ 




/ 




08/02/93 




.0501 - .0502 




/ 








08/02/93 




.0504 - .0505 




/ 








08/02/93 




.0508 




/ 




/ 




08/02/93 




21 NCAC 37 .0509 






/ 






08/02/93 







8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



849 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 

Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.0512 




/ 








08/02/93 




.0514 




/ 








08/02/93 




.0517 




/ 








08/02/93 




.0519 




/ 




/ 




08/02/93 




.0603 




/ 








08/02/93 




.0701 - .0707 




/ 








08/02/93 




.0708 - .0709 






/ 






08/02/93 




.0901 




/ 




/ 




08/02/93 




.0903 




/ 








08/02/93 




.0912 




/ 




/ 




08/02/93 




54 .1605 




/ 








09/01/93 


180 DAYS 


58A .0110 










/ 






58B .0101 




/ 








08/02/93 




.0201 




/ 








08/02/93 




.0301 




/ 








08/02/93 




25 NCAC IE .1401 - .1402 


/ 






/ 




08/02/93 




.1403 


/ 










08/02/93 




.1404 - .1406 


/ 






/ 




08/02/93 




.1407 


/ 










08/02/93 




.1408 - .1409 


/ 






/ 




08/02/93 




11 .2301 




/ 




/ 




08/02/93 




IJ .0604 




/ 




/ 




08/02/93 




.0802 




/ 




/ 




08/02/93 




26 NCAC 1 .0103 




/ 




/ 




08/02/93 




.0202 




/ 








08/02/93 




2A .0102 




/ 








08/02/93 




.0401 




/ 




/ 




08/02/93 




.0701 






/ 






08/02/93 




2B .0103 - .0104 




/ 




/ 




08/02/93 




.0401 




/ 








08/02/93 




4 .0008 




/ 




/ 




08/02/93 





I 



i 



I 



850 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G. S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d}. 



ADMESflSTRATION 

Department of Administration's Minimum Criteria 

1 NCAC 39 .0101 - Purpose 

No Response from Agency 
1 NCAC 39 .0301 - Exceptions to Minimum Criteria 

No Response from Agency 

N.C. Low-Level Radioactive Waste Management Authority 

7 NCAC 37 .0103 - Mailing List 

Agency Revised Rule 
1 NCAC 37 .0306 - Prefrrred Site 

Agency Revised Rule 

ADMINISTRATIVE HEARINGS 

Civil Rights Division 

26 NCAC 4 .0008 - Contested Case Hearing 
Agency Revised Rule 

Rules Division 

26 NCAC 2A .0401 - General Typing Instructions 
Agency Revised Rule 

ENVIRONMENT, HEALTH. AND NATURAL RESOURCES 

Coastal Management 

ISA NCAC 7H . 1205 - Specific Conditions 
Rule Returned to Agency 
Agency Filed Rule for Codification Over RRC Objection 

Environmental Health 

15A NCAC 18A .0911 - Marinas: Docking Facilities: Other Mooring Areas 

Agency Revised Rule 
15A NCAC 18A .1601 - Definitions 

Agency Revised Rule 
15A NCAC 18A .1725 - Water Quality 

Agency Revised Rule 
15A NCAC 18A .2618 - Cleaning of Equipment and Utensils 

Agency Revised Rule 

Environmental Management 



RRC Objection 06/17/93 

Obj. Cont'd 07/15/93 

RRC Objection 06/17/93 

Obj. Cont'd 07/15/93 



RRC Objection 07/15/93 

Obj. Removed 07/15/93 

RRC Objection 07/15/93 

RRC Objection 07/15/93 



RRC Objection 07/15/93 
Obj. Removed 07/15/93 



RRC Objection 07/15/93 
Obj. Removed 07/15/93 



RRC Objection 03/18/93 

04/15/93 

Eff 04/23/93 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



06/17/93 
06/17/93 
06/1 7/93 
06/17/93 
06/17/93 
06/17/93 
06/17/93 
06/17/93 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



851 



RRC OBJECTIONS 



ISA NCAC 2D .0903 - Recordkeeping: Reporting: Monitoring 

Agency Revised Rule 
ISA NCAC 2H .1110 - Implementation 

Agency Responded 

Agency Responded 

Agency Responded 

Agency Responded 



RRC 


' Objection 


06/17/93 


Ohj. 


Removed 


06/17/93 


RRC 


' Objection 


02/18/93 


Ohj. 


Cont 'd 


03/18/93 


Obj. 


Cont 'd 


OS/ 19/93 


Obj. 


Cont 'd 


06/17/93 


Obj. 


Cont 'd 


07/1S/93 



f 



North Carolina Zoological Park Regulations 

ISA NCAC 22B .0S03 - Intoxicating Liquors: Controlled Substance/Beverages RRC Objection 
Agency Revised Rule Obj. Removed 

WTP Operators Certification Commission 



07/1S/93 
07/1S/93 



ISA NCAC 8A .0102 - Creation RRC Objection 06/17/93 

Agency Repealed Rule Obj. Removed 06/1 7/93 

ISA NCAC 8A .0202 - Duties and Requirements RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

ISA NCAC 8B . 0102 - Applying for Examination RRC Objection 06/1 7/93 

Agency Revised Rule Obj. Removed 06/1 7/93 

ISA NCAC 8B . 0109 - Requirement for Notification of Change in Address RRC Objection 06/1 7/93 

Agency Revised Rule Obj. Removed 06/1 7/93 

ISA NCAC 8B .0201 - Grade I Wastewater Treatment Plant Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/1 7/93 

ISA NCA C 8B . 020S - Definitions RRC Objection 06/1 7/93 

Agency Revised Rule Obj. Removed 06/17/93 

ISA NCAC 8B .0207 - Grade II Collection System Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/1 7/93 

ISA NCAC 8B .0208 - Grade III Collection System Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/1 7/93 

ISA NCAC 8B .0209 - Grade IV Collection System Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

ISA NCAC 8B .0210 - Subsurface System Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

ISA NCAC 8B .0211 - Land Application/Residuals Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/1 7/93 

ISA NCAC 8B .0212 - Spray Irrigation Operator RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 06/17/93 

ISA NCA C 8B . 0S02 - Refimding of Fees RRC Objection 06/1 7/93 

Agency Revised Rule Ohj. Removed 06/1 7/93 

ISA NCAC 8C .0002 - Rating Scale/Classification/Wastewater Trtmt Facilities RRC Objection 06/17/93 

Agency Revised Rule Ohj. Removed 06/1 7/93 



i 



HUMAN RESOURCES 



Children's Services 



10 NCAC 41 P .0008 - Adoptive Study 

Agency Revised Rule 
10 NCAC 41 Q .0201 - Personnel 

Agency Responded 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 
10 NCAC 41 R .0002 - Administration and Organization 



RRC Objection 


07/1S/93 


Ohj. Renujved 


07/IS/93 


RRC Objection 


04/1S/93 


Obj. Cont'd 


OS /1 9/93 




06/17/93 


Eff 


07/02/93 


RRC Objection 


07/1S/93 


August 


16, 1993 



852 



8:10 



NORTH CAROLINA REGISTER 



KRC OBJECTIONS 



Ajii'ncy Revised Rule 

Individual and Family Support 

10 NCAC 42H .0906 - Assessment and Reassessment 
Agency Revised Rule 

Mental Health: General 

10 NCAC 14K .0315 - Treatment/Habilitation Planning and Documentation 
Agency Revised Rule 

JUSTICE 



RRC Objection 07/15/93 



RRC Objection 07/15/93 
Obj. Removed 07/15/93 



RRC Objection 
Obj. Removed 



06/1 7/93 
06/1 7/93 



Office of the Attorney General 

12 NCAC 21 .0104- Definitions 

Agency Revised Rule 
12 NCAC 21 .0202 - Minimum Standards for Company Police Officers 

Agency Revised Rule 
12 NCAC 21 .0203 - Application for Company Police Agency 

Agency Revised Rule 
12 NCAC 21 .0205 - Background Investigation 

Agency Revised Rule 
12 NCAC 21 .0212 - Suspension, Revocation, or Denial of Officer Conmiission 

Agency Revised Rule 

12 NCAC 21 .0213 - Period of Suspension. Revocation or Denial 

Agency Revised Rule 

LABOR 
OSHA 

13 NCAC 7 A .0401 - Carolina Star Program 

Agency Revised Rule 
13 NCAC 7 A .0604 - Selection of Safety Committees 
Agency Revised Rule 

LICENSING BOARDS AND COMlVflSSIONS 



RRC Objection 
Obj. Renwved 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Renwved 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Renwved 



07/15/93 
07/15/93 
07/15/93 
07/15/93 
07/15/93 
07/15/93 
07/15/93 
07/15/93 
07/15/93 
07/15/93 
07/15/93 
07/15/93 



RRC Objection 07/15/93 

Obj. Removed 07/15/93 

RRC Objection 07/15/93 

Obj. Renwved 07/15/93 



Landscape Architects 

21 NCAC 26 .0203 - General Obligations of Practice: Mandatory Standards RRC Objection 06/17/93 

Agency Repealed Rule Obj. Removed 06/17/93 

21 NCA C 26 . 0205 - Forms of Practice RRC Objection 06/1 7/93 

Rule Returned to Agency 07/15/93 

21 NCA C 26 . 0207 - Application of Professional Seal RRC Objection 06/1 7/93 

Rule Returned to Agency 07/15/93 

21 NCA C 26 . 0208 - Improper Conduct RRC Objection 06/1 7/93 

Rule Returned to Agency 07/15/93 

21 NCA C 26 . 0209 - Unprofessional Conduct RRC Objection 06/1 7/93 

Agency Revised Rule Obj. Removed 07/15/93 

21 NCAC 26 .0210 - Dishonest Practice RRC Objection 06/17/93 

Agency Revised Rule Obj. Removed 07/15/93 

21 NCAC 26 .0211 - Incompetence RRC Objection 06/17/93 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



853 



RRC OBJECTIONS 



Agency Revised Rule 
21 NCAC 26 .0301 - Examination 
Agemy Revised Rule 

Medical Examiners 

21 NCAC 32B .0315 - Ten Year Qualification 
Agency Revised Rule 

Real Estate Commission 

21 NCAC 58A .0110 - Brokcr-in-Charge 

Agency- Revised Rule 
21 NCAC 58A .0506 - Salesman to be Supervised by Broker 

Agency Revised Rule 
21 NCAC 58C .0305 - Course Scheduling 

Agency Revised Rule 

REVENUE 

Ad Valorem Tax Division 

17 NCAC 10 .0506 - Certification Requirements for County Appraisers 

Agency Revised Rule 
17 NCAC 10 .0508 - Certification Requirements for Private Firm Appraisers 

Agency Revised Rule 

STATE PERSONNEL 
Office of State Personnel 



Obj. Removed 07/15/93 
RR C Objection 06/1 7/93 
Obj. Removed 07/15/93 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



06/17/93 
06/17/93 



06/17/93 
06/17/93 
06/17/93 
06/1 7/93 
06/1 7/93 
06/17/93 



RRC Objection 06/17/93 

Obj. Removed 07/15/93 

RR C Objection 06/1 7/93 

Obj. Removed 07/15/93 



i 



25 NCAC IE . 1401 - Purpose and Scope 

Agency Revised Rule 
25 NCAC IE . 1406 - Employee Responsibility 

Agency Revised Rule 



RRC Objection 07/15/93 

Obj. Removed 07/15/93 

RRC Objection 07/15/93 

Obj. Removed 07/15/93 



854 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



RVLES INVALIDATED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



1 NCAC 5A .0010 - ADMINISTRATIVE PROCEDURES 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portions 
of Rule 1 NCAC 5A .0010 void as applied in Stauffer Information Systems, Petitioner v. The North Carolina 
Department of Community Colleges and The North Carolina Department of Administration , Respondent and 
Tlie University of Southern California, Intervenor-Respondent (92 DOA 0666). 

10 NCAC 3H .0315(b) - NURSING HOME PATIENT OR RESIDENT RIGHTS 

Dolores O. Nesnow, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 
NCAC 3H .0315(b) void as applied in Barbara Jones, Petitioner v. North Carolina Department of Human 
Resources, Division of Facility Services, Licensure Section, Respondent (92 DHR 1192). 

10 NCAC 3R .1124(f) - ACCESSIBILITY TO SERVICES 

Beecher R. Gray, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 
NCAC 3R .1124(f) void as applied in Britthaven. Inc. d/b/a Britthaven of Morganton, Petitioner v. N.C 
Department of Hutmin Resources, Division of Facility Services, Certificate of Need Section, Respondent and 
Valdese Nursing Home, Inc., Respondent-Intervenor (92 DHR 1785). 

15A NCAC 30 .0201(a)(1)(A) - STDS FOR SHELLFISH BOTTOM & WATER COLUMN LEASES 

Julian Mann IH, Chief Administrative Law Judge with the Office of Administrative Hearings, declared Rule 
15A NCAC 30 .0201(a)(1)(A) void as applied in William R. Willis, Petitioner v. North Carolina Division of 
Marine Fisheries, Respondent (92 EHR 0820). 

ISA NCAC 19A .0202(d) (10) - CONTROL MEASURES - HIV 

Brenda B. Becton, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A 
NCAC 19A .0202(d)( 10) void as applied \n ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle), 
Steven Harris, and John Doe, Petitioners v. Commission for Health Services of the State of North Carolina, 
Ron Levine, as Assistant Secretary of Health and State Health Director for the Department cf Environment, 
Health, and Natural Resources of the State of North Carolina, William Cobey, as Secretary' of the Department 
of Environment, Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, as 
Chief Cotnmunicable Disease Control Section of the North Carolina Department of Environment, Health, and 
Natural Resources, Wayne Babbitt Jr. , as Chief cf the HIV/STD Control Branch of the North Carolina 
Department of Environment , Health, and Natural Resources, Respondents (91 EHR 0818). 



8:10 NORTH CAROLINA REGISTER August 16, 1993 855 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina 's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



f 



AGENCY 



CASE 
NUMBER 



AU 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTR.\TION 



LMS Express, Inc. \'. Adminislration. Dis' of Purchase Si. Contract 
Stauffer Information Systems v. Communit\ Colleges &i Administration 
McLaurin Parkmg Co. v. Administration 
Warren H- Arrington Jr. v Di\ision of Purchase & Contract 



92 DOA 0735 


Morgan 


06/04/93 




92 DOA 0803 


West 


06/10/93 


8:7 NCR 613 


92 DOA 1662 


Morrison 


04/02/93 


8:3 NCR 320 


93 DOA 0132 


West 


07/21/93 





AixonoLic bk\t:r.\ge control commission 



Alcoholic Beverage Control Comm. v. Ann Oldham McDowe 

Curtis Ray Lynch v. Alcoholic Beverage Control Comm- 

Alcoholic Beverage Control Comm. v. Ezra Everett Rigshee 

Alcoholic Beverage Control Comm. 

Alcoholic Be\erage Control Comm. 

Alcoholic Be\'erage Control Comm. 

Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. 

Johnnie L. Baker v. Alcoholic Beverage Control Commission 

RAMSAC Enlerpnses, Inc. v. Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. v. Aubrey Rudolph Wallace 

Alcoholic Beverage Control Comm. v. Majdi Khalid Wahdan 

Alcoholic Beverage Control Comm. v. Homer Patrick Godwin Jr. 

Alcoholic Beverage Control Comm. v. Wanda Lou Ball 

Charles Anthonious Moranl v. Alcoholic Beverage Control Comm. 

ABC Comm. v. Partnership T/A Corrothers Comty Ctr & Pnvate Club 

Alcoholic Bev. Control Comm. v. Mild & Wild. Inc.. Sheila Scholz 



Partnership, Phillip Owen Edward 

Gary Morgan Ncugent 

Kirhy Ronald Eldridge 

Glona Black McDuffie 

Larry Isacc Hailstock 

Anthony Ralph Cecchini Jr. 



92 ABC 0260 


Morgan 


04/01/93 


92 ABC 0288 


Gray 


05/18/93 


92 ABC 0702 


West 


07/30/93 


92 ABC 097S 


Gray 


05/28/93 


92 ABC 1086 


Becton 


03/22/93 


92 ABC 1153 


Chess 


04/26/93 


92 ABC 1476 


West 


05/26/93 


92 ABC 1483 


Reilly 


04/07/93 


92 ABC 1690 


Morgan 


06/29/93 


92 ABC 1735 


Chess 


05/07/93 


93 ABC 0002 


Morrison 


07/02/93 


93 ABC 0047 


Gray 


05/28/93 


93 ABC 0087 


Becton 


07/06/93 


93 ABC 0125 


Reilly 


05/13/93 


93 ABC 0182 


Nesnow 


07/29/93 


93 ABC 0232 


Chess 


07/20/93 


93 ABC 0318 


Reilly 


07/22/93 


93 ABC 1475 


Nesnow 


03/23/93 



8:9 NCR 785 



i 



COMMERCE 



Lester Moore V. Wealherization Assistance Program 



93 COM 0105 



Gray 



03/08/93 



CRIME CONTROL .AND PUBLIC SA^TTY 



George W. Paylor v. Crime Victims Compensation Comm. 
Steven A- Bamerv. Crime Victims Compensation Comm. 
Anthony L. Hart v. Victims Compensation Comm. 
Jennifer A\ ers v. Crime Victims Compensation Comm. 
Janie L. Howard v. Crime Victims Compensation Comm. 
Isabelle Hyman v. Crime Victims Compensation Comm. 
James G. Pellom v. Crime Control & Public Safety 
Norman E. Brown v. Victims Compensation Commission 
Moses H. Cone Mem Hosp v. Victims Compensation Comm. 
David &. Jane Spano v. Crime Control &. Public Safety 
Phillip Edward Moore v. Crime Control &. Public Safety 
John Willie Leach v . Crime Victims Compensation Comm. 
Nellie R. Mangum v. Crime Victims Compensation Comm. 
Constance Brown v. Crime Victims Compensation Comm. 



91 CPS 1286 


Morgan 


04/27/93 




92 CPS 0453 


Nesnow 


06/01/93 




92 CPS 0937 


Chess 


03/01/93 




92 CPS 1195 


Reilly 


03/19/93 




92 CPS 1787 


Reilly 


03/26/93 




92 CPS 1807 


Morrison 


05/24/93 




93 CPS 0034 


Gray 


05/05/93 




93 CPS 0141 


West 


07/07/93 




93 CPS 0152 


Nesnow 


04/02/93 


8:3 NCR 327 


93 CPS 0160 


Nesnow 


07/30/93 


8:10 NCR 862 


93 CPS 0169 


Nesnow 


05/20/93 




93 CPS 0263 


Morrison 


05/20/93 




93 CPS 0303 


Morrison 


06/08/93 




93 CPS 0351 


Reilly 


05/24/93 





EN\ IRONMENT. HEALTH. AND NATLrR.\L RESOURCES 



Charles L. Wilson v. Environment. Health, A: Natural Resources 
J. Bruce Mulligan v. Environment. Health, &. Nalrual Resources 
Michael D. Barnes v. Onslow Cty Hlth &. En\ ironment and EHR 
William E. Finck v. Environment. Health. &. Natural Resources 



91 EHR 0664 


Morgan 


03/23/93 


91 EHR 0773 


West 


07/13/93 


91 EHR 0825 


Morgan 


06,'21/93 


92 EHR 0040 


Gray 


06/14/93 



c 



856 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



CONTESTED CASE DECISIONS 



I 



AGENCY 



Ulley C. Stailings V. Environmeni, Health. & Natural Resources 
Safeway Removal, Inc. v. Environment. Health, & Natural Res. 
Elizabeth City/Pasquotank Cty Mun Airport Aulh v. EHNR 
Service Oil Company v. Environment. Health. &. Natural Resources 
City of Salisbury v. Environment, Health. & Natural Resources 
Willie M. Watford v. Hertford Gates District Health Department 
Standard Speciality Contractors. Inc. v. EHNR 
Shawqi A. Jaher v. Environment, Health. & Natural Resources 
Angela Power, Albert Power v. Children's Special Health Svcs. 
Erby Lamar Grainger v. Environment, Health, &. Natural Resources 
Mustafa E. Essa v. Environment, Health, &, Natural Resources 
Charlie Garfield Mcpherson Swine Farm v. Env., Health, & Nat. Res. 
Rosetta Brimage, Vanessa Pack v. Env. Health of Craven County 
O.C. Stafford/Larry Haney v. Montgomery Cty. Health Dept. 
Bobby Anderson v. Environment, Health, & Natural Resources 
Shell Bros. Dist.. Inc. v. Environment, Health, 8l Natural Resources 
Hamilton Beach/Proctor-Silex, Inc. v. Environment. Health. & Natrl Res 



CASE 




DATE OF 


NUMBER 


AI.J 


DECISION 


92 EHR 0062 


Gray 


03/15/93 


92 EHR 0826 


West 


03/12/93 


92 EHR 1 140 


Gray 


04/13/93 


92 EHR 1205 


Reilly 


05/27/93 


92 EHR 1472 


Morrison 


04/22/93 


92 EHR 1500 


Chess 


03/24/93 


92 EHR 1660 


Reilly 


05/21/93 


92 EHR 1784 


Becton 


07/07/93 


93 EHR 0008 


Bcclon 


03/24/93 


93 EHR 0071 


Reilly 


06/21/93 


93 EHR 0146 


Gray 


03/29/93 


93 EHR 0181 


Reilly 


07/23/93 


93 EHR 0206 


Nesnow 


05/20/93 


93 EHR 0224 


Gray 


06/07/93 


93 EHR 0299 


Reilly 


06/07/93 


93 EHR 0308 


Becton 


05/18/93 


93 EHR 0477 


Reilly 


06/29/93 



PUBLISHED DECISION 
REGISTER CITATION 



8:1 NCR 83 



8:10 NCR 870 



I 



I 



HUMAN RESOURCES 

O.C. Williams v. Human Resources 

Ronald Terry Brown v. Human Resources 

Dennis K. King v. Human Resources 

O.C. Williams v. Human Resources 

Michael L. Ray v. Human Resources 

Randy Chambliss v. Human Resources 

Mclvin White v. Human Resources 

Joseph R. Kavaliauskas Jr. v. Human Resources 

Jefferson D. Boylen v. Human Resources 

Jeffery D. Williams v. Human Resources 

Jerry L. Summers v. Human Resources 

Samuel E. Massenberg Jr. v. Human Resources 

William A. Dixon v. Human Resources 

Gregory L. Washington v. Human Resources 

Edwin Clarke v. Human Resources 

Dwayne Allen v. Human Resources 

Edwin Ivester v. Human Resources 

Connie F. Epps, Otis Junior Epps v. Human Resources 

Tyrone Aiken v. Human Resources 

Everett M. Eaton v. Human Resources 

Edward E. Brandon v. Human Resources 

Darrell W, Russell v. Human Resources 

John Henry Byrd v. Human Resources 

Michelle D. Mobley v. Human Resources 

Robert E. Watson v. Human Resources 

Byron Christopher Williams v. Human Resources 

James W. Bell v. Human Resources 

Charles W. Stall Jr. v. Human Resources 

Eric Stanley Stokes v. Human Resources 

David Rollins v. Human Resources 

Lyndell Greene v. Human Resources 

Leroy Snuggs v. Human Resources 

James P. Miller HI v. Human Resources 

Herbert H. Fordham v. Human Resources 

Jack Dulq v. Human Resources 

Larry L. Crowder v. Human Resources 

Carlos Bernard Davis v. Human Resources 

Ocie C. Williams v. Human Resources 

Tcrrance Freeman v. Human Resources 

Timothy Brian Eller v. Human Resources 

Charles S. Ferrer v. Human Resources 

Ronald H. Lockley v. Human Resources 

Rene Thomas Rittenhouse v. Human Resources 

Thomas Edward Williamson v. Human Resources 



Consolidated cases. 



91 CSE0036*- 


Morgan 


03/30/93 


91 CSE0249 


Morgan 


05/17/93 


91 CSE 


1122 


Morgan 


07/28/93 


91 CSE 


1158*- 


Morgan 


03/30/93 


91 CSE 


1173 


Morgan 


05/17/93 


91 CSE 


1187 


Morgan 


04/28/93 


91 CSE 


1192 


Morgan 


05/17/93 


91 CSE 


1204 


Morgan 


07/29/93 


91 CSE 


1217 


Morgan 


05/17/93 


91 CSE 


1231 


Morgan 


04/28/93 


91 CSE 


1234 


Morgan 


07/28/93 


91 CSE 


1249 


Morgan 


05/17/93 


91 CSE 


1277 


Morrison 


03/04/93 


92 CSE 0075 


Morgan 


04/01/93 


92 CSE 0129 


Morgan 


05/17/93 


92 CSE 0196 


Morgan 


03/31/93 


92 CSE 0268 


Nesnow 


03/30/93 


92 CSE 


1182 


Reilly 


07/22/93 


92 CSE 


1217 


Gray 


06/17/93 


92 CSE 


1221 


Reilly 


07/27/93 


92 CSE 


1237 


Gray 


04/16/93 


92 CSE 


1249 


Becton 


04/20/93 


92 CSE 1250 


Reilly 


06/04/93 


92 CSE 


1256 


Nesnow 


04/15/93 


92 CSE 


1265 


Reilly 


05/06/93 


92 CSE 


1270 


Nesnow 


04/26/93 


92 CSE 


1311 


Nesnow 


05/10/93 


92 CSE 


1313 


Mann 


07/06/93 


92 CSE 


1316*' 


Reilly 


03/25/93 


92 CSE 


1334 


Morrison 


05/06/93 


92 CSE 


1346 


Nesnow 


04/16/93 


92 CSE 


1360 


Morrison 


04/15/93 


92 CSE 


1361 


Gray 


04/16/93 


92 CSE 


1362 


Nesnow 


07/19/93 


92 CSE 1374 


Gray 


07/16/93 


92 CSE 


1396 


Reilly 


04/15/93 


92 CSE 


1404 


Reilly 


04/15/93 


92 CSE 


1405 


Mann 


06/25/93 


92 CSE 


1411 


Mann 


06/07/93 


92 CSE 


1414 


Reilly 


04/20/93 


92 CSE 


1416 


Mann 


04/15/93 


92 CSE 


1418 


Nesnow 


04/20/93 


92 CSE 


1421 


Nesnow 


04/20/93 


92 CSE 


1422 


Reilly 


04/20/93 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



857 



CONTESTED CASE DECISIONS 



AGENCY 



Roy Chester Robinson v. Human Resources 

Timothy Scott Long v. Human Resources 

David W. Williams v. Human Resources 

William E. Ingram v. Human Resources 

Harold R. Pledger v. Human Resources 

Henry Alston Jr. v. Human Resources 

Michael W. Bentley v. Human Resources 

Dale Robert Stuhre v. Human Resources 

Tommy Malone v. Human Resources 

James C. Dixon Jr. v. Human Resources 

Wallace M. Cooper v. Human Resources 

Jarvis N. Price v. Human Resources 

Thomas L. Yates v. Human Resources 

Robert E. Tarlton Sr. v. Human Resources 

Rodney Devard Clemons v. Human Resources 

James A. Coleman v. Human Resources 

Romeo F. Skapplev. Human Resources 

Jeffrey L. Garrett v. Human Resources 

Edward Kirk v. Human Resources 

William C. Hubbard v. Human Resources 

William Michael Pr2ybysz v. Human Resources 

Edward Fitch v. Human Resources 

David Robinettev. Human Resources 

Kit C. Elmore v. Human Resources 

Brian C. Gilmore v. Human Resources 

Philip S. Piercy v. Human Resources 

Anthony McLaughlin v. Human Resources 

Johnny W. Cooke v. Human Resources 

Roland L. Essaff v. Human Resources 

Isaac Ma.xwell v. Human Resources 

Donald J. Ray v. Human Resources 

Charles Wayne Pierce v. Human Resources 

Donna G. Knotls v. Human Resources 

McKinley Clybum v. Human Resources 

Tony Thorpe v. Human Ret^ources 

Jeffery D. Williams v. Human Resources 

Ronald Sowell v Human Resources 

Billy Smith v. Human Resources 

Anthony Curry v. Human Resources 

Larry W. Golden w Human Resources 

William J. Carter v. Human Resources 

Mark W. Dean v. Human Resources 

Tyrone Thomas v. Human Resources 

Rilton E. May v. Human Resources 

Eric Stanley Stokes v. Human Resources 

Larry Thompson v. Human Resources 

Billic J. Smith v. Human Resources 

Patrick Floyd v. Human Resources 

Dennis W. Nolan v. Human Resources 

Eric L. Garland v. Human Resources 

Ira Alston Jr. v. Human Resources 

Ronald G. Bolden v. Human Resources 

Margin HoUey v. Human Resources 

Eddie Short v. Human Resources 

Michael Tyuan Marsh v. Human Resources 

Leroy Jones v. Human Resources 

Ronald Dean Lowery v. Human Resources 

James E. Blakney v. Human Resources 

Barbara W. Catlett v. Human Resources 

Laurel Langford v. Human Resources 

Ida Diane Davis v. Human Resources 

Hatsuko Klein v. Human Resources 

Leon Barbee v. Human Resources 

Carrohon of Dunn, Inc. v. Human Resources 

Dialysis Care of North Carolina, Inc.. d/b/a Dialysis Care of 
Cumberland County v. Human Resources, Division of Facility 
Ser\'ices, Certificate of Need Section, and Bio-Medical 
Applications of Fayetteville d/b/a Fayetteville Kidney Center. 



CASE 




DATE OK 


NamiBER 


ALJ 


DECISION 


92 CSE 1423 


Reilly 


04/15/93 


92 CSE 1445 


Becton 


06/29/93 


92 CSE 1448 


Nesnow 


07/19/93 


92 CSE 1450 


Reilly 


04/15/93 


92 CSE 1455 


Morrison 


05/20/93 


92 CSE 1460 


Becton 


06/29/93 


92 CSE 1512 


Nesnow 


06/09/93 


92 CSE 1516 


Reilly 


05/11/93 


92 CSE 1520 


Mann 


05/07/93 


92 CSE 1522 


Becton 


05/11/93 


92 CSE 1527 


Reilly 


05/11/93 


92 CSE 1531 


Morrison 


05/12/93 


92 CSE 1535 


Gray 


05/10/93 


92 CSE 1536 


Gray 


05/17/93 


92 CSE 1539 


Gray 


05/10/93 


92 CSE 1540 


Reilly 


05/11/93 


92 CSE 1545 


Gray 


04/26/93 


92 CSE 1557 


Gray 


04/22/93 


92 CSE 1560 


Gray 


06/29/93 


92 CSE 1562 


Mann 


05/12/93 


92 CSE 1565 


Becton 


07/23/93 


92 CSE 1572 


Reilly 


05/11/93 


92 CSE 1573 


Mann 


07/14/93 


92 CSE 1575 


Gray 


07/16/93 


92 CSE 1576 


Gray 


04/26/93 


92 CSE 1577 


Gray 


07/16/93 


92 CSE 1582 


Gray 


06/29/93 


92 CSE 1585 


Becton 


05/11/93 


92 CSE 1588 


Morrison 


07/26/93 


92 CSE 1589 


Reilly 


04/26/93 


92 CSE 1592 


Mann 


05/19/93 


92 CSE 1596 


Morrison 


07/14/93 


92 CSE 1611 


Morrison 


07/16/93 


92 CSE 1623 


Morrison 


05/20/93 


92 CSE 1625 


Che«s 


07/15/93 


92 CSE 1626 


Mann 


05/19/93 


92 CSE 1627 


Reilly 


07/19/93 


92 CSE 1629 


Reilly 


03/25/93 


92 CSE 1631 


Reilly 


03/25/93 


92 CSE 1633 


Rc.Uy 


03/25/93 


92 CSE 1637 


Nesnow 


05/19/93 


92 CSE 1638 


Reilly 


07/15/93 


92 CSE 1640 


Mann 


07/22/93 


92 CSE 1642 


Morgan 


07/29/93 


92 CSE 1652*' 


Reilly 


03/25/93 


92 CSE 1655 


Reilly 


07/22/93 


92 CSE 1656 


Gray 


07/23/93 


92 CSE 1663 


Reilly 


05/20/93 


92 CSE 1670 


Mornson 


06/25/93 


92 CSE 1671 


Mann 


07/22/93 


92 CSE 1703 


Becton 


06/16/93 


92 CSE 1706 


Mann 


06/25/93 


92 CSE 1713 


Mann 


06/08/93 


92 CSE 1714 


West 


07/15/93 


92 CSE 1716 


Gray 


06/17/93 


92 CSE 1718 


Gray 


06/17/93 


92 CSE 1771 


West 


07/15/93 


92 CSE 1779 


Nesnow 


05/13/93 


92 DCS 0577 


West 


03/15/93 


92 DCS 1181 


Gray 


05/04/93 


92 DCS 1200 


Gray 


03/29/93 


92 DCS 1271 


Reilly 


05/05/93 


92 DHR 0658 


Morrison 


04/30/93 


92 DHR 1101 


Morgan 


07/26/93 


92 DHR 1109*» 


Morgan 


06/22/93 



PUBLISHED DECISION 
REGISTER CITATION 



i 



8:5 NCR 441 

8:4 NCR 392 
8:8 NCR 687 



c 



858 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



CONTESTED CASE DECISIONS 



I 



I 



AGENCY 



Webb-Lohavichan-Mclton Rentals, Bio-Medical Applications 
of North Carolina, Inc., d/b/a BMA of Raeford and Webb- 
Lohavichan Rentals 

Dialysis Care of North Carolina, Inc.. d/b/a Dialysis Care of 
Cumberland County v. Human Resources. Division of Facility 
Services, Certificate of Need Section, and Bio-Medical 
Applications of Fayetteville d/b/a Fayetleville Kidney Center, 
Webb-Lohavichan-Melton Rentals, Bio-Medical Applications 
of North Carolina, Inc., d/b/a BMA of Raeford and Webb- 
Lohavichan Rentals 

Bio-Medical Applications of North Carolina, Inc.. d/b/a BMA 
of Raeford. Webb-Lohavichan-Melton Rentals. Bio-Medical 
Applications of North Carolina, Inc.. d/b/a BMA of Fayetleville 
d/b/a Fayetteville Kidney Center and Webb-Lx)havichan Rentals 
v. Human Resources, Division of Facility Services, Certificate of 
Need Section and Dialysis Care of North Carolina, Inc., d/b/a 
Dialysis Care of Hoke County 

Renal Care of Rocky Mount. Inc. v. Human Resources, Division of 
Facility Services, Certificate of Need Section, and Bio-Medical 
Applications of North Carolina, Inc., d/b/a BMA of Tarboro, 
Rocky Mount Nephrology Associates, Inc.. Bio-Medical 
Applications of North Carolina. Inc., d/b/a BMA of Rocky Mount 
d/b/a Rocky Mount Kidney Center, and Rocky Mount Kidney Center 
Associates 

James H. Hunt Jr. v. Division of Medical Assistance 

Barbara Jones v. Human Resources 

Joyce P. Williams v. Human Resources 

Snoopy Day Care, Diane Hamby v. Child Day Care Licensing 

Cynthia Reed v. Human Resources 

Helm's Rest Home. Ron J. Schimpf/Edith H. Wilson v- Human Resources 

Jo Ann Kinsey v. NC Memorial Hospital Betty Hutton, Volunteer Svc. 

Amy Clara Williamson v. NC Mem Hosp Betty Hutton, Volunteer Svc. 

Betty Butler V. Human Resources 

Wayne Sanders and Brenda Sanders v. Human Resources 

Samuel Benson v. Office of Admin. Hearings for Medicaid 

Cabarrus Cty Dept. of Social Svcs. v. Human Resources 

Fannie Lewis v. Human Resources 

Katie Kelly v. Human Resources 



CASE 
NUMBER 



ALJ 



92 DHR 1120 



Gray 



DATE OF 
DECISION 



92 DHR 1110=** Morgan 06/22/93 



92 DHR 1116** Morgan 06/22/93 



06/18/93 



PUBLISHED DECISION 
REGISTER CITATION 



8:8 NCR 687 



8:8 NCR 687 



8:8 NCR 687 



92 DHR 


1145 


Becton 


05/13/93 


8:5 


NCR 443 


92 DHR 


1192 


Nesnow 


04/02/93 


8:3 


NCR 313 


92 DHR 


1275 


Gray 


03/15/93 






92 DHR 


1320 


Morgan 


05/21/93 






92 DHR 


1329 


Chess 


05/10/93 






92 DHR 


1&04 


Reilly 


05/10/93 






92 DHR 


1612 


Chess 


03/08/93 






92 DHR 


1613 


Chess 


03/08/93 






92 DHR 


1614 


Chess 


03/09/93 






92 DHR 


1699 


Reilly 


06/07/93 


8:7 


NCR 632 


93 DHR 0010 


Becton 


03/11/93 






93 DHR 0373 


Morgan 


07/20/93 






93 DHR 0379 


Gray 


06/28/93 






93 DHR 0441 


Chess 


07/26/93 







INSURANCE 

Carolyn M. Hair v. St Employees Comprehensive Major Medical 92 INS 1464 Chess 03/10/93 

Phyllis C. Harris v. Teachers' & St. Emp. Comp. Major Med. Plan 93 INS 0197 Nesnow 07/29/93 

JUSTICE 



Jennings Michael Bostic v. Sheriffs* Ed. &. Traning Stds. Comm. 
Colin Carlisle Mayers v. Sheriffs' Ed. &. Training Stds. Comm. 
Jennings Michael Bostic v. Sheriffs' Ed. & Traning Stds. Comm. 
George Wilton Hawkins v. Crimmal Justice Ed. & Training Stds. Comm. 
Marilyn Jean Britl v. Criminal Justice Ed. & Training Stds. Comm. 
Tim McCoy Deck v. Criminal Justice Ed, & Training Stds. Comm. 
Richard Zander Frink v. Criminal Justice Ed. & Traning Stds. Comm, 
Sherri Ferguson Revis v. Sheriffs' Ed. & Training Stds. Comm. 
Mark Thomas v. Sheriffs' Ed. & Training Standards Commission 
George Wilton Hawkins v. Sheriffs' Ed. & Training Stds. Comm. 
Alarm Systems Licensing Bd. v, Eric Hoover 
Alarm Systems Licensing Bd. v. Vivian Darlene Gaither 
William B. Lipscomb v. Private Protective Services Board 
Private Protective Svcs. Bd, v. Alan D. Simpson 



92 DOJ 0656*' 


West 


06/22/93 


92 DOJ 0761 


Morrison 


05/10/93 


92 DOJ 0829*' 


West 


06/22/93 


92 DOJ 1081*° 


Morgan 


07/09/93 


92 DOJ 1088 


Morrison 


03/16/93 


92 DOJ 1367 


Chess 


04/01/93 


92 DOJ 1465 


Nesnow 


05/28/93 


92 DOJ 1756 


Gray 


03/23/93 


93 DOJ 0151 


West 


04/21/93 


93 DOJ 0156*' 


Morgan 


07/09/93 


93 DOJ 0201 


Becton 


07/12/93 


93 DOJ 0202 


Chess 


05/10/93 


93 DOJ 0458 


Morrison 


06/01/93 


93 DOJ 0480 


West 


07/21/93 



LABOR 



I 



Greensboro Golf Center, Inc. v. 
Ronald Dennis Hunt v. Labor 
Jeffrey M. McKinney v. Labor 



Labor 



92 DOL 0204 
92 DOL 1319 
92 DOL 1333 



Nesnow 
Morgan 
Morrison 



04/15/93 
06/17/93 
06/21/93 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



859 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OK 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



MORTUARY SCIENCE 

Board of Mortuary Science v. Triangle Funeral Chapel, Inc. 

PUBLIC INSTRUCTION 

Frances F. Davis, Parent of Joseph E. Davis v. Public Instruction 

STATE PERSONNEL 

Frances K. Pate v. Transportation 

Lawrence D. Wilkie. Jerry R. Evans. Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie. Jerry R. Evans, Jules R. Hancart. 

James H. Johnson. James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans. Jules R. Hancart. 

James H. Johnson, James D- Fishel v. Justice 
Lawrence D, Wilkie, Jerr> R. Evans, Jules R. Hancart, 

James H, Johnson. James D. Fishel v. Justice 
Lawrence D. Wilkie. Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Bemie B. Kellly v. Correction 
Brenda G. Mitchell v. Correction 

Adolph Alexander Justice Jr. v. Motor Vehicles, Transportation 
Clayton Brewer v. North Carolina State University 
Sherman Daye v. Transportation 
Donnie NL White v. Correction 

Gregory Samuel Parker v. Environment, Health. &, Natural Resources 
Renee E. Shepherd v. Winston-Salem State University 
Eva Dockery v. Human Resources 

Lee P. Crosby v. Michael Kelly, William Meyer and EHR 
Gregory Samuel Parker v. Environment, Health, & Natural Resources 
Willie Granville Bailey v. Winston-Salem State University 
Julia Spinks v. Environment, Health. &. Natural Resources 
James B. Price v. Transportation 
L Gary Naillingv. UNC-CH 
Deborah Barber v. Correction 
Laveme B. Hill v. Transportation 
Jimmy D. Wilkins v. Transportation 

Sarah W. Britt v. Human Resources. C.A- Dillon School, CPS 
Charles Robinson v. Revenue 

Herman James Goldstein v. UNC-Chapel Hill el al- 
Glinda C. Smith v. Wildlife Resources Commission 
Cindy G. Bartlett v. Correction 

William Kenneth Smith Jr. v. Broughton Hospital (Human Resources) 
Larry O. Nobles v. Human Resources 

Beatrice Wheless v. Lise M. Miller, University Payroll Off., NC St. Univ. 
Willie Tliomas Hope v. Transportation 
David Scales v. Correction 

Suzanne Ransley Hill v. Environment, Health. & Nat. Res. 
Herman James Goldstein v. UNC-Chapel Hill et al. 

Beatrice Wheless v. Lise M. Miller. University Payroll Off.. NC St. Univ. 
John B. Sauls v. Wake County Health Department 
Gilbert Jaeger v. Wake County Alcoholism Treatment Center 
Joseph Henry Bishop v. Environment. Health. S^ Natural Res. 
Willie L, Hudson v. Correction 

Brenda K. Campbell v. Employment Security Commission 
Christie L. Guthrie v. Environment. Health, &. Natural Resources 
James B. Price v. Transportation 
Jerry L. Jones v. N.C.S.U. Physical Plant 
Betty Bradsherv. UNC-CH 
Jamal Al Bakkat-Morris v. Glenn Sexton (DSS) 
Brenda Kay Barnes v. Human Resources 
Larry G. Riddle v. Correction. Division of Pnsons 
Stevie E. Dunn v. Polk Youth Center 

Buford D. Vieregge Jr. v. N.C. State University, University Dining 
Karen Canter v. Appalachian State University 
Barbara A. Johnson v. Human Resources 



92 BMS 1169 Reilly 04/29/93 



93 EDC 0628 Mann 07/29/93 



8:4 NCR 396 



88 OSP 0340 


Morrison 


05/03/93 




90 OSP 1064** 


Mann 


05/04/93 




90 OSP lOoS** 


Mann 


05/04/93 




90 OSP 1066** 


Mann 


05/04/93 




90 OSP 1067*' 


Mann 


05/04/93 




90 OSP 1068** 


Mann 


05/04/93 




91 OSP 0344 


Morrison 


05/27/93 




91 OSP 0625 


West 


03/08/93 


8:1 NCR 75 


91 OSP 0860 


Chcis 


07/19/93 




91 OSP 0941 


West 


04/02/93 


8:3 NCR 306 


91 OSP 0951 


West 


05/07/93 




91 OSP 1236 


Morgan 


04/05/93 




91 OSP 1344*' 


Chess 


05/20/93 




91 OSP 1391 


Morgan 


04/28/93 




92 OSP 0010 


Chess 


05/03/93 




92 OSP 0056 


Gray 


06/07/93 




92 OSP 0188*' 


Chess 


05/20/93 




92 OSP 0285 


Momson 


03/10/93 




92 OSP 0313 


Becton 


04/12/93 


8:4 NCR 382 


92 OSP 0375 


Gray 


04/13/93 




92 OSP 0394 


Becton 


04/20/93 




92 OSP 0396 


Chess 


03/04/93 




92 OSP 0431*' 


West 


03/08/93 




92 OSP 0432*' 


West 


03/08/93 




92 OSP 0455 


We«t 


05/26/93 


8:6 NCR 484 


92 OSP 0553 


Morgan 


07/21/93 




92 OSP 0634 


Morrison 


05/04/93 




92 OSP 0653 


Morrison 


03/12/93 




92 OSP 0671 


Morgan 


06/08/93 




92 OSP 0684 


Becton 


05/10/93 




92 OSP 0732 


Mann 


04/23/93 




92 OSP 0744*"' 


Morgan 


07/16/93 




92 OSP 0947 


Morgan 


03/23/93 




92 OSP 0989 


Chess 


06/24/93 




92 OSP 0992 


Reilly 


03/18/93 


8:2 NCR 224 


92 OSP 1047 


Momson 


05/04/93 




92 OSP 1124*"' 


Morgan 


07/16/93 




92 OSP 1142 


Reilly 


03/08/93 


8:1 NCR 88 


92 OSP 1204 


Reilly 


05/10/93 




92 OSP 1243 


Reilly 


03/05/93 




92 OSP 1468 


Becton 


05/26/93 




92 OSP 1505 


Morrison 


03/17/93 




92 OSP 1555 


Becton 


05/31/93 




92 OSP 1657 


Mann 


03/19/93 




92 OSP 1661 


Chess 


07/06/93 




92 OSP 1733 


Becton 


03/30/93 




92 OSP 1741 


Becton 


03/24/93 




92 OSP 1768 


Morrison 


03/17/93 




92 OSP 1774 


Gray 


04/26/93 




92 OSP 1789 


Becton 


04/19/93 




92 OSP 1796 


Morrison 


05/27/93 




93 OSP 0079 


Reilly 


06/15/93 




93 OSP 0103 


Morrison 


03/17/93 





( 



t 



860 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



CONTESTED CASE DECISIONS 



I 



AGENCY 



Carrie P. Smith v. County of Stanly 

George W. Allen v. Human Resources, Correction, Agri &. EHNR 

William G. Fisher v. Si Bd of Ed, Albermarle City Schools &. Bd of Ed 

Grace Jean Washington v. Caswell Center 

Clifton E. Simmons v. Correction 

Willie L. James v. Caswell Center 

Irving S. Rodgers v. C.A. Dillon, Division of Youth Services 

Brian Dale Earnhardt v. Slate Highway Patrol 

Michael L. Pegram v. Correction 

Jerry D. Doss Sr. v. Correction 

Debbie Renee Robinson v. Correction 

Michael L. Pegram v. Correction 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


93 OSP0109 


Becton 


04/01/93 




93 OSPOllI 


Reilly 


04/16/93 




93 OSP0134 


Becton 


04/20/93 




93 OSP0153 


Morgan 


06/03/93 




93 OSP 0159 


Morrison 


04/21/93 




93OSP0171 


Morgan 


05/27/93 




93 OSP 0177 


West 


04/21/93 




93 OSP 0251 


Rellly 


07/27/93 




93 OSP 0275** 


ReiUy 


06/28/93 




93 OSP 0287 


Gray 


05/17/93 




93 OSP 0383 


Nesnow 


06/07/93 




93 OSP 0472»* 


Reilly 


06/28/93 





STATE TREASURER 



Herman D. Brooks v. Bd of Trustees /Teachers' &. St Emp Ret Sys 
Henrietta Sandlin v. Teachers' & State Emp Comp Major Medical Plan 
Mary Alyce Carmichael v. Bd/Trustees/Teachers' & St Emp Ret Sys 



91 DST0566 


Gray 


04/13/93 


92 DST 0305 


Morgan 


04/12/93 


92 DST 1506 


Chess 


04/08/93 



TRANSPORTATION 



Yates Construction Co., Inc. v. Transportation 
UNTVERSITY OF NORTH CAROLINA HOSPITALS 



92 DOT 1800 Morgan 03/25/93 



Constance V. Graham v. UNC Hospital 
Jacqueline Rorence v. UNC Hospitals 



93 UNC 0269 
93 UNC 0355 



Morgan 
Becton 



07/20/93 
06/16/93 



I 



I 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



861 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF FORSYTH 



IN THE OFHCE OF 

ADMEVISTRATrVE HEARINGS 

93 CPS 0160 



DAVID AND JANE SPANO, 
Petitioner, 



N.C. DEPARTMENT OF CREVEE CONTROL ANT) 
PUBLIC SAFETY. DFSTSION OF VICTIMS AND 
JUSTICE SERVICES, 
Respondent. 



RECOMMENDED DECISION 



The above-captioned hearing was heard before Administrative Law Judge Dolores O. Nesnow, on 
June 23, 1993, in High Point, North Carolina. 



APPEARANCES 



For Petitioner: 



For Respondent: 



Jane Spano, pro se 

713 Lake Drive 

Kernersville, North Carolina 27284 

Petitioner 

Robert Hargett 

Assistant Attorney General 

N. C. Department of Justice 

P. O. Box 629 

Raleigh. North Carolina 27602-0629 

Attorney for Respondent 



( 



STATUTES ANT) RULES IN ISSLT: 

N.C. Gen. Stat. 15B-1 et seq. 
ISSUE 



Did the Respondent err in denying Petitioner's 
Compensation Act? 



laim for reimbursement under the Victim's 



MOTIONS 

The Respondent registered a standing objection to the hearsay evidence that was admitted concerning 
statements made by "T". The undersigned overruled that objection and allowed evidence of "T's" statements 
to be admitted under the hearsay objection of the Administrative Procedure Act, G.S. 150B-29(a). The 
undersigned determined that "T" was not present in the courtroom for good cause and was therefore "not 
reasonably available." The undersigned therefore admitted the evidence as the "most reliable and substantial 
evidence available ..." 



I 



862 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



CONTESTED CASE DECISIONS 



WITNESSES 
For Petitioner: 

1 . Shirley J. Beshears - Lecturer and activist on the topic of Satanism in the Kemersvilie area; 

2. Betty Grouse - Community activist on the topic of child abuse and murder, member of the Winston- 
Salem Police Chiefs Task Force on that topic. Associate and co-lecturer with Shirley J. Beshears; 

3. Jane Spano - Petitioner. 
For Respondent: 

1. Dr. David Allen - Psychiatrist in private practice and part time psychiatrist with the Forsyth-Stokes 
Mental Health Center; 

2. Gayle Halpern - Social Worker III, Forsyth-Stokes Mental Health Center; 

Based upon careful consideration of the testimony and evidence presented at the hearing and the 
documents and exhibits received into evidence, the undersigned makes the following: 

EXHIBITS 

For Petitioner 

P#l "T's" Diary 
P#2 Letter from "T" 

AL.I Exhibits 

AU#1 Medical Records of "T" 

FINDINGS OF FACT 

1. In 1989, when the Petitioner's child (hereinafter referred to as "T") was 10 years old, she 
began to exhibit strange behavior. 

2. At that point in time, a friend of "T's", Corey, had died and the funeral had just occurred. 

3. "T's" mother attempted to comfort her daughter concerning her friend's death, but "T" stated 
repeatedly "you don't understand." 

4. "T" recovered from her grief but after some time had passed, she began to socialize with a 
group of friends who stayed out late, drank, and were otherwise a bad influence on "T." 

5. In 1991, when "T" was 12 years old, she again exhibited odd behavior one evening which 
included refusal to participate in "family night" and which also included "T" attempting to wash a pair of her 
own blue jeans by herself, which she did not normally do. 

6. "T's" mother went to "T's" room to talk with her daughter and found that she had propped 
the window open with a stick and had left the house. Petitioner called the police and a police officer spoke 
with Petitioner and stated that he knew where she had gone. He stated that she was associating with older 
children and that he would go to that location and bring "T" back home, which he did. 

7. The next morning. Petitioner spoke with her daughter and asked her if she was sexually 
active. Her daughter responded that she had been only on one occasion with one person. 



8:10 NORTH CAROLINA REGISTER August 16, 1993 863 



CONTESTED CASE DECISIONS 



8. Petitioner's daughter gave her a list of the names and phone numbers of the friends with 
whom she was associating. 

9. Petitioner's mother began to call the friends" parents to inform them that they may want to 
look into their children's activities. Petitioner's mother also called the Kernersville Police Department because 
she suspected she knew the boy with whom her daughter had been sexually active and suspected him to be 
a minor also. She informed the police department that she wanted to press charges. 

10. When Petitioner informed "T" of what she had done, "T" "went crazy" and kept repeating 
"you don't know what you're doing." 

1 1 . The boy who Petitioner suspected had been picked up by the police and the police determined 
that he had raped two other young women who were going to testify against him. 

12. During that time, "T" became very withdrawn and Petitioner had "T" placed in the Forsyth- 
Stokes Mental Health Center for psychiatric care. 

13. The boy was three months short of being four years older than "T" and he could not be 
charged with statutory rape. 

14. At the time of the boy's arrest, "T" was unwilling to testify. 

15. The evidence indicates that since the boy was charged with two other rape offenses, "T" was 
not pressed for her testimony. 

16. It is not entirely known how intensely "T's" testimony was pursued, but the District Attorney 
(DA) told Petitioner that he did not need "T" to testify since he had two other solid charges. 

17. When "T" was released from the Center, she went back to school and there was a period of 
calm and normal behavior. 

18. About two years later, the Petitioner became aware that the boy who had allegedly sexually 
assaulted her daughter and who had been given active time in a correctional facility, was about to be released. 

19. Petitioner found her daughter rolled into a fetal position in the back of her closet and found 
that her daughter would not leave the closet. 

20. Petitioner again placed her daughter in the Forsyth-Stokes Mental Health Center. 

21 . While her daughter was at that Center, Petitioner went to her daughter's school and cleaned 
out her daughter's possessions. While the Petitioner was at the school, she found among her daughter's 
possessions a diary which was hidden in back of her locker. The diary makes reference to continuing death 
threats which "T" was receiving in 1991 and makes detailed reference to a newspaper article during which 
the boy in question had been arrested and was being charged with rape. 

22. The diary also talks about telephone calls coming in to "T" and how "T" feels that her mother 
and sister are safe but that she is not. The diary also speaks in a childish code of witnessing a much more 
serious crime which would put the boy "away forever." 

23. The diary also talked about phone calls which said that "T" would be dead at the end of the 
week and "David" would also be dead. TTie diary further talked about David and "T" visiting Corey's grave 
on the weekend after her release. 

24. There were threatening phone messages coming in to "T's" home which stated that "T" would 
be dead in seven days and David would also be dead. 



864 8:10 NORTH CAROLINA REGISTER August 16, 1993 



CONTESTED CASE DECISIONS 



25. During the time of the threatening phone calls to "T" and her family, someone drove by the 
Petitioner's home and shot a bullet into the house. 

26. After finding the diary and after receiving threatening phone calls herself, Petitioner hired 
a private detective. 

27. The Petitioner has moved "T" out of the State where she is living in an undisclosed location. 

28. At the present time, "T" has learned through correspondence, that the boy is about to be 
paroled. She has written in letters to friends that she does not anticipate living long after he is released. 

29. Dr. David Allen, a psychiatrist who works part-time at the Forsyth-Stokes Mental Health 
Center, testified that he is somewhat familiar with "T's" case. 

30. Dr. Allen testified that he worked with "T" in the Spring of 1991 , that he sees patients at that 
Center four times a week, that he does not conduct therapy, and that his primary role is to regulate 
medication. 

31. Dr. Allen testified, after reviewing some of his notes, that he had made the diagnosis of 
"symptoms of depression, some suicidal, grieving over peer two years earlier committed suicide. Diagnosis - 

depressive disorder with psychotic features." (sic) 

32. Dr. Allen was asked to give examples of the psychotic features and testified that "T", on 
occasion, became mute during his sessions and would stare into space and that she sometimes thought she 
could see the face of her friend who had committed "suicide." 

33. Dr. Allen testified that he felt very definitely that "T" was not being open with him and that 
there was some sort of secret involved. 

34. During her hospitalization, "T" was given an electro-encephalogram (EEG). The 
determination made upon reading the EEG was that "T" may have suffered some petit mal seizures but that 
reading was not conclusive. 

35. Dr. Allen testified that he ordered Tegretol, an anticonvulsive drug for "T" but that she did 
not wish to take it. He further testified that he ordered an antidepressant, Prozac, which she may or may not 
have taken. Dr. Allen testified that he did not diagnose "T" with post-traumatic stress disorder or any similar 
disorder, but that if he had to, he would have probably treated her with antidepressants anyway. 

36. Although Dr. Allen testified that it was necessary to get permission from the parents before 
drugs are given to minors, the parents were never informed that their daughter had been prescribed Tegretol 
and Prozac and had been given an EEG or that there had been a diagnosis of possible petit mal seizures. 
This information was not known to the Petitioner until the day of the hearing. 

37. The parents, despite several attempts, were also never able to see the records from the 
Forsyth-Stokes Mental Health Center until the morning of this hearing, at which point Mrs. Spano was given 
the opportunity to review the records and to request a continuance. 

38. Dr. Allen testified that he did not think "T" had actually suffered from seizures but that she 
had suffered dissociative episodes. 

39. Dr. Allen further testified that the boy who had allegedly committed suicide had written "T" 
a note stating that "they're going to kill me." 

40. Dr. Allen, however, testified that there were other teenagers on the ward who were also there 
because of psychological problems brought about as a result of Corey's alleged suicide. 



8:10 NORTH CAROLINA REGISTER August 16, 1993 865 



CONTESTED CASE DECISIONS 



41. Dr. Allen testified that none of those children who were at the Center for psychiatric 
treatment would talk about Corey's suicide and that it was his judgment that there was some sort of "pact of 
silence" about it. 

42. Dr. Allen was asked if he suspected that Corey may have been murdered and he stated that 
he thought that v.as a possibility. 

43. Dr. Allen testified that he did not tell that to anyone because he was not the treating physician 
and it was purely speculation. 

44. During "T"s" hospitalization, there was one family therapy session held. During that session. 
Petitioner's husband was asked to leave the room and Mrs. Spano was told that her child had been raped 
violently and had had things done to her body which no one should ever know about and that she should take 
her child home and forget about it. 

45. Gayle Halpern. a Social Worker with Forsyth-Stokes Mental Health Center. sa\>.' the family 
five times as outpatients after "T" had been released from the Center. 

46. Ms. Halpern testified that "T" was ven,' guarded about speaking about Corey's death. 

47. Ms. Halpern testified that she believed that "T" did drink alcohol but can't recall if "T" had 
e\er told Ms. Halpern that she was sexually active. When Ms. Halpern asked "T" how much she drank, "T" 
replied "half a bottle." 

48. Ms. Halpern testified that she ne\er saw e\'idence of alcohol or drugs and that "T" had told 
her she was tested for drugs, alcohol and pregnancy. The results of all those tests were negative. 

49. Ms. Halpern testified that "T's" talk of alcohol and drugs might have all been "a brag." 

50. Shirley Beshears testified that she is a community activist and lectures on the topic of 
salanism. Ms. Beshears has been actively invoh'ed in community task forces and other activities in\'olving 
child abuse and murder. 

51 . Ms. Beshears testified that her son was killed in 1980 and that after his death she had found 
evidence in his room of satanic involvement. Additionally, after her son's death, Ms. Beshears" sister told 
her that their stepson (Mrs. Beshears' nephew) had a satanic bible. 

52. Subsequently, Ms. Beshears testified, man}' of her friends began to tell here that there was 
devil worship in their local town. 

53. Ms. Beshears began to read and learn about that topic. 

54. Petitioner and her daughter "T", heard Ms. Beshears speak at a church function and 
subsequently became friends with .Ms. Beshears. "T" became particularly fond of Ms. Beshears and shared 
many of her concerns with her. 

55. At one point. Petitioner had accumulated enough money to purchase eye glasses for "T. " The 
glasses were stolen and someone told "T" that they had given them to the boy who was incarcerated and that 
he could see her actions by looking through her glasses. "T" belie\ed that the boy could "do spells" from 
jail. 

56. "T" told Ms. Beshears that she was told by many other young people that she was going to 
be killed the Summer of 1993. 



( 



{ 



866 8:10 NORTH CAROLINA REGISTER August 16, 1993 



CONTESTED CASE DECISIONS 



57. Betty Crouse is also a community activist who began to work with Ms. Beshears in the lecture 
circuit speaking on satanism and satanic cults. 

58. Ms. Crouse became friends with "T" and Ms. Crouse testified that "T" has an intelligence 
quotient (IQ) of 161, but that she "is a terrified child." 

59. At some point in time, Ms. Beshear and Ms. Crouse went to the local police department 
because they had learned that a satanic cult in the area was planning to steal and murder a baby. Ms. Crouse 
testified that the police cooperated and sent officers to guard the house from which the baby was allegedly to 
be taken. 

60. Ms. Crouse testified that she was certain that Corey had not committed suicide and that there 
were drugs and alcohol involved in this circle of friends as well as satanism and murder. She further testified 
that there are two Winston-Salem gangs who supply guns to the local cults. 

61 . Ms. Crouse testified that there have been eight children murdered in the area; Ms. Beshears' 
and seven others. 

62. Ms. Crouse also testified that letters were received by the families of these eight murdered 
children, which letters were received on the date of the death of the child stating that the children would be 
dead on that day. 

63. After careful and deliberate observation of Ms. Beshears, Ms. Crouse and Ms. Spano, and 
after reconciling their testimony with the available facts, the undersigned finds their testimony to be fully and 
completely credible. 

64. After careful observation of the testimony of Dr. Allen, the undersigned finds that while his 
testimony may be credible, it is replete with vagaries, caveats, and a blatant example of his lack of 
involvement in his admitted failure to report to anyone his speculation that a murder may be the root cause 
of the psychological trauma of a number of teenagers in the area. 

65. The Center's medical records indicate that "T's" problems began to manifest themselves at 
the time of her friend's suicide. 

66. The Center's medical records also indicate that she is "reality oriented", "poised", and 
"personable", but also reports that she is "basically unrealistic regarding her life situation", "oppositional", 
and "defies adult authority." 

67. That record further reflects that "T" was a witness to a suicide at 10 and had been earlier 
sworn to silence by the suicide victim, that she was molested by a black male, and that she seems to be 
"trapped in the grief process." 

68. Two days after the alleged rape, "T's" father reported the offense to the Respondent. 

69. The investigator for the Commission was told during the investigation that "T" had stated that 
she had consented to the sexual act. 

70. On January 14, 1993, the Commission denied the Petitioner's claim for compensation and, 
in pertinent part, found that the "investigation had produced insufficient information to establish that claimant's 
personal injury or death directly and proximately resulted from criminally injurious conduct ..." (emphasis 
added) 

Based upon the foregoing Findings of Fact, the undersigned makes the following: 



8:10 NORTH CAROLINA REGISTER August 16, 1993 867 



CONTESTED CASE DECISIONS 



CONCLUSIONS OF LAW 

1. The North Carolina Crime Victims Compensation Act (Act), N.C. Gen. Stat. 15B, was 
created in 1983 to compensate victims of crime for criminally injurious conduct. 

2. The Recommendation for Denial from the Commission was not based upon whether or not 
"T" was prepared to testify. The denial, rather, was based upon the conclusion that no crime had actually 
occurred because of "T's" consent. 

3. N.C. Gen. Stat. 14-27.2 provides that first degree rape is vaginal intercourse with a victim 
who is a child under the age of 13 and a defendant who is at least twelve years old and at least four years 
older than the victim. That same statute provides, in pertinent part, that first degree rape also includes vaginal 
intercourse with another person by force or against the will of the other person . 

There are a line of cases promulgated under this which stand for the premise that actual 
physical force is not required but that physical force may include fear, fright or duress. State v^ Overman 
269 N.C. 453, 153 S.E.2d 44 (1967); State of Primes 275 N.C. 61, 165 S.E.2d 225 (1969); State v. Roberts 
293 N.C. 1, 235 S.E.2d 203 (1977); State v. Hall 293 N.C. 559, 238 S.E.2d 473 (1977). 

4. Although "T" stated at the time shortly after the alleged rape that she had given her consent, 
she told both Ms. Beshears and Ms. Crouse that she had been raped. Additionally, and more importantly, 
during her hospitalization, a hospital official reported to "T's" mother that "T" had been raped very violently 
and had things done to her body which no one should know about. 

This is clearly a case of unusual and extraordinary circumstances which must be considered 
in a single case approach. A juvenile who may have been traumatized at the age of 10 by witnessing a murder 
and who is subsequently raped by the same perpetrator, may be "forced" to "consent" both through fear and 
intimidation for her life and because of threats of death made to herself and her family. 

Since the alleged "suicide" and possible murder of Corey some years earlier had caused a 
number of teenagers in the area to suffer enough psychological trauma to cause them to be hospitalized, there 
is an indication that tragic and serious events were occurring within the teenage community of this small town. 
Additionally, civic leaders provided evidence that macabre and occasionally fatal activities were occurring 
which were not disregarded by the local police. Further, "T's" behavior, upon learning of the alleged 
perpetrator's pending release, would indicate a high level of fear which further corroborates the likelihood 
that a forced rape occurred. 

A review of the Center's medical records on "T" indicates a somewhat inconsistent and 
contradictory summary which does not provide a clear or conclusive picture of "T's" problems. 

Since "T" was a child at the time, it is difficult to hold her to the same standards to which 
other victims of crime are held. The drafter of the Act wisely inserted the word "may" when drafting both 
the "contributory misconduct" clause and the "police cooperation" clause, thus leaving the Commission with 
room for contemplation and decision. In like manner, the provision of the Act which requires that a crime 
have been committed does not address whether that crime must have had all the elements proven , be likely 
to be proven in court, or be pled to a lesser offense. Further, the Act does not require a conviction. 

The evidence indicates that "T" was, at the age of 12, raped against her will by the same 
person she believed to have been responsible for at least one other serious crime and that "T's" fear, fright 
and duress were of such magnitude that it rose to the level offeree. 

It is emphatically the opinion of the undersigned that this victim suffered greatly as a result 
of criminally injurious conduct and that the Commission would well serve the people of this State by 
considering this matter in light of its unique and singular fact pattern which requires special attention and 
deliberation. 



868 8:10 NORTH CAROLINA REGISTER August 16, 1993 



i 



I 



CONTESTED CASE DECISIONS 



I 



I 



5. After having the opportunity to observe these witnesses at close range and to reconcile 

numerous facts with their testimony, the undersigned is convinced and hereby concludes as a matter of law 
that the child "T" was the victim of a crime - forced rape - and was unable, through force, terror, and duress 
to reveal all that had happened and all that she knew. 

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned makes the 
following: 

RECOMMENDATION 

That the Commission reconsider its determination, reverse its original finding, and reimburse the 
Petitioner for all eligible expenses related to this crime. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties" attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the N. C. Department of Crime 
Control and Public Safety, Division of Victims and Justice Services. 

This the 30th day of July, 1993. 



Dolores O. Nesnow 
Administrative Law Judge 



I 



8:10 NORTH CAROLINA REGISTER August 16, 1993 869 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF COLUMBUS 



EN THE OFFICE OF 

ADMINISTRATrVE HEARINGS 

93 EHR 0181 



I 



CHARLIE GARFIELD MCPHERSON 
SWINE FARM, 

Petitioner, 



DEPARTMENT OF ENVIRONMENT. HEALTH 
AND NATURAL RESOURCES, 
Respondent. 



RECOMMENDED DECISION 



This matter came on for hearing before the undersigned administrative law judge on July 13, 1993, 
in Whiteville. 

Mr. Dennis T. Worley represented the petitioner. Ms. Elizabeth Rouse Mosley represented the 
respondent. The respondent presented three witnesses and introduced Exhibits #1 , 2, 3, 5, 6, 8, 9, 10 and 1 1 . 
At the end of the respondent's evidence, the petitioner made a Motion to Dismiss pursuant to Rule 41(b), 
Rules of Civil Procedure. The Motion was GRANTED. 

ISSLfE 

Did the respondent properly assess a civil penalty and enforcement costs against the petitioner for violation 
of G.S. 143-215. 1(a)(1) as alleged in the January 8, 1993, Decision? 

FINDINGS OF FACT 

1. The swine farm, located near Chadboum, is owned by Mr. Charlie Garfield McPherson. The swine 
farm has been designated as a concentrated animal feedlot operation. 

2. On October 20, 1992, respondent's employees observed a discharge of wastewater from one of the 
hog houses. The discharge flowed across a field and into a man-made drainage ditch. TTie discharge 
had a reddish tint and the odor of hog waste. The discharge contained hog feed. 

3. The petitioner admitted that the cause of the discharge was a busted coupling which he repaired. 

4. There was no evidence that the man-made drainage ditch flowed into Cedar Branch, a tributary of 
Beaverdam Swamp which is classified as "C Swamp Waters." Tlie man-made drainage ditch is not 
an unnamed tributary to Cedar Branch. There was also no evidence that the discharge of wastewater 
reached any groundwater. 

5. The respondent assessed a civil penalty of four thousand dollars ($4,000.00) and enforcement costs 
of two hundred, sixty-four dollars and seventy-four cents ($264.74) against the petitioner on January 
8, 1993. 



CONCLUSIONS OF LAW 



The petitioner is a "person" as defined in G.S. 143-212(4) and -215. 6A. 



I 



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8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



CONTESTED CASE DECISIONS 



2. The petitioner did not violate G.S. 143-215. l(a)(l ) by making an outlet into the waters of the State. 
"Waters" is defined in G.S. 143-212(6). 

3. The respondent did not properly assess a civil penalty and enforcement costs against the petitioner. 

RECOMMENDED DECISION 

It is recommended that the civil penalty and the enforcement costs assessed against the petitioner be 
dismissed. 

ORDER 

It is hereby ORDERED that the agency serve a copy of the Final Decision on the Office of 
Administrative Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina 
General Statutes 150B-36(b). 

NOTICE 

The final decision in this contested case shall be made by the Environmental Management 
Commission. Each party has the right to file exceptions to the recommended decision and to present written 
arguments on the decision to this agency. 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

This the 23rd day of July, 1993. 



Robert Roosevelt Reilly, Jr. 
Administrative Law Judge 



8:10 NORTH CAROLINA REGISTER August 16, 1993 871 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



\ 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


2 


Agriculture 


3 


Auditor 


4 


Economic & Community Development 


5 


Correction 


6 


Council of State 


7 


Cultural Resources 


8 


Elections 


9 


Governor 


10 


Human Resources 


11 


Insurance 


12 


Justice 


13 


Labor 


14A 


Crime Control & Public Safet>' 


15A 


Environment. Health, and Natural 




Resources 


16 


Public Education 


17 


Revenue 


18 


Secretary' of State 


19A 


Transportation 


20 


Treasurer 


21 


Occupational Licensing Boards 


22 


Administrative Procedures 


23 


Community Colleges 


24 


Independent Agencies 


25 


State Personnel 


26 


Administrative Hearings 



Architecture 2 

Auctioneers 4 

Barber Examiners 6 

Certified Public Accountant Examiners 8 

Chiropractic Examiners 10 

General Contractors 12 

Cosmetic Art Examiners 14 

Dental Examiners 16 

Dietetics/Nutrition 17 

Electrical Contractors 18 

Electrolysis 19 

Foresters 20 

Geologists 21 

Hearing Aid Dealers and Fitters 22 

Landscape Architects 26 

Landscape Contractors 28 

Marital and Family Therapy 31 

Medical Examiners 32 

Midwifery Joint Committee 33 

Mortuary Science 34 

Nursing 36 

Nursing Home Administrators 37 

Occupational Therapists 38 

Opticians 40 

Optometry 42 

Osteopathic Examination & Reg. (Repealed) 44 

Pharmacy 46 

Physical TTierapy Examiners 48 
Plumbing, Heating & Fire Sprinkler Contractors 50 

Podiatry' Examiners 52 

Practicing Counselors 53 

Practicing Psychologists 54 

Professional Engineers & Land Surveyors 56 

Real Estate Commission 58 

"Reser\ed" 59 

Refrigeration Examiners 60 

Sanitarian Examiners 62 

Social Work 63 
Speech & Language Pathologists & Audiologists 64 

Veterinary' Medical Board 66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



t 



872 



8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1993 - March 1994) 

Pages Issue 

1 - 92 1 - April 

93 - 228 2 - April 

229 - 331 3 - May 

332 - 400 4 - May 

401 - 455 5 - June 

456 - 502 6 - June 

503 - 640 7 - July 

641 - 708 8 - July 

709 - 792 9 - August 

793 - 875 10 - August 



Unless otherwise identified, page references in this Index are to proposed rules. 



ADMINISTRATION 

Administration's Minimum Criteria, 5 

Low-Level Radioactive Waste Management Authority, 232 

ADMINISTRATIVE HEARINGS 

Civil Rights Division, 370 
General, 366 
Rules Division, 367 

AGRICULTURE 

N.C. State Fair, 506 
Plant Industry, 513 
Veterinary Division, 515 

COMMERCE 

Alcoholic Beverage Control Commission, 408, 711 

Banking Commission, 408, 798 

Cemetery Commission, 810 

Savings Institutions Division: Savings Institutions Commission, 461 

State Ports Authority, 81 1 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management, 279, 571 

Departmental Rules, 465 

Environmental Management, 210, 556, 658, 797 

Health Services, 283, 335, 425, 465, 572, 709, 762 

Marine Fisheries, 28, 568 

Mining: Mineral Resources, 829 

NPDES Permit, 710 

Soil and Water Conservation, 214 

Wildlife Resources Commission, 32, 663, 831 

Zoological Park, 337 



8:10 NORTH CAROLINA REGISTER August 16, 1993 873 



CUMULATIVE INDEX 



FINAL DECISION LETTERS 

Voting Rights Act. 4, 407, 460, 795 

GOVERNOR/LT. GOVERNOR i 

Executive Orders, 1, 93, 229, 332, 401. 456, 641, 793 ' 

HUMAN RESOURCES 

Aging, Division of, 815 

Deaf and Hard of Hearing. Services for the, 650 

Facility Services, 94 

Medical Assistance, 25. 414, 553, 712 

Medical Care Commission, 644 

Mental Health, Developmental Disabilities and Substance Abuse Services, 7, 413, 516 

Social Services Commission, 237, 733 

INSURANCE 

Actuarial Services, 555. 657 

Medical Database Commission. 463. 737 

JUSTICE 

Alarm Systems Licensing Board, 761 

Attorney General, Office of the, 28 

Criminal Justice Education and Training Standards Commission, 253 

Criminal Justice Standards Division, 241 

Private Protective Services Board, 252 

Sheriffs" Education and Training Standards Commission, 738 

LABOR 

OSHA, 97, 231, 278 

LICENSING BOARDS 

Architecture, 43 

Dental Examiners. State Board of. 763 

Electrolysis Examiners. Board of, 841 

Foresters, Registration for, 674 

Geologists, Board of, 285 

Medical Examiners, Board of, 591 

Mortuary Science, Board of, 45. 342 

Nursing Home Administrators, 346 

Pharmacy, Board of, 47, 354 

Physical Therapy Examiners, 53, 767 

Plumbing, Heating and Fire Sprinkler Contractors, 360 

Practicing Ps\'chologists, Board of, 844 

Real Estate Commission. 53. 364 

Social Work. Certification Board for. 428 

LIST OF RUXES CODIFIED 

List of Rules Codified. 61, 290. 432, 593, 769, 845 

PUBLIC EDUCATION 

Elementary and Secondary Education, 427, 470 

STATE PERSONNEL 

Office of State Personnel, 286 



r 



< 



874 8:10 NORTH CAROLINA REGISTER August 16, 1993 



CUMULATIVE INDEX 



STATE TREASURER 

Retirement Systems, 337 

TAX REVIEW BOARD 

Orders of Tax Review, 503 

TRANSPORTATION 

Highways, Division of, 669, 836 



I 



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8:10 



NORTH CAROLINA REGISTER 



August 16, 1993 



875 



(1 



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I 



NORTH CAROLINA ADMINISTRATIVE CODE 



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